Rick Hasen's web log
June 29, 2007
"Faux Judicial Restraint in Full View"
Law.com/The Recorder has posted my commentary on the Supreme Court's decision in WRTL this week. It begins:
- Earlier this week the Supreme Court took a major step toward the deregulation of American campaign financing with its decision in Wisconsin Right to Life v. FEC. Though the opinion is important for its actual holding -- corporations and unions are going to have a much easier time paying for election-related ads out of their general treasury funds rather than from harder-to-use political action committees (or PACs) --i its real significance is what it says about the court's new attitude towards money and politics in general, and Chief Justice John Roberts' views about how to best dismantle remaining liberal precedents on the court.
It concludes:
- Beyond campaign finance, the court's decision in WRTL shows precisely how Roberts intends to undo the remaining liberal precedents of the past. Rather than expressly overrule precedents with which he disagrees, he is more content to give the appearance of "tweaking" the law -- all the while doing radical surgery. It is similar to the way the court treated the abortion question earlier this term in Carhart, redefining (without expressly overruling) the "undue burden" standard to make it much easier for states to impose limits on abortion.
No one is fooled, however. Scalia acidly noted in a footnote to his concurring opinion in WRTL that besides Roberts and Alito, the seven remaining justices on the court -- who agree about little else in the campaign finance arena -- agree that the chief's opinion essentially overrules McConnell: "This faux judicial restraint is judicial obfuscation."
At his confirmation hearing, Roberts talked of judicial modesty and the building of judicial consensus. By those measures, his performance thus far has been disappointing, with a whole slew of 5-4 decisions coming down this term. But for those who want to see a radical sea change in constitutional law in the direction of conservatism and deregulation, the Roberts Court so far appears to be quite successful.
Bob Bauer responds, I think unfairly characterizing me as a knee-jerk supporter of reform. Two recent law review articles I've written on campaign finance (this one in Penn and this one in Ohio State) are quite critical of the New Deference Cases that characterized the end of the O'Connor Court. I've been no fan of the New Deference.
I am writing a much more extensive piece on WRTL, and it will respond to Bob's criticisms (as well as offer other analysis) in great detail.