Skip to comments.Defending Chief Justice Roberts
Posted on 11/07/2009 5:32:21 AM PST by Kaslin
In recent months, at least three major newspapers have carried columns attempting to push Chief Justice John Roberts into voting to uphold a grossly unconstitutional federal law. But their cheap distortions and Chicken Little yammering will fail. The chief justice will do his job, and the country will be better off for it.
On Sept. 9, the U.S. Supreme Court reheard arguments in the landmark campaign finance and free speech case, Citizens United v. FEC. At issue in this case is whether the McCain-Feingold Bipartisan Campaign Reform Act (BCRA) could ban documentaries about candidates when Election Day is approaching.
This case was originally heard in April. But in June the Court called for a rare rehearing of the case, with the parties specifically arguing whether two Supreme Court precedents from the past that had upheld major restrictions on speech should be overruled, Austin v. Michigan Chamber of Commerce and part of McConnell v. FEC.
Ordinary people often have to pool their donations in corporations like public-interest groups to have enough money to get their message out on TV and radio. Perhaps too focused on how corporations in the past were mammoth operations like G.E. or General Motors with massive money to push agendas, and public-interest groups were rare, the Court held in these earlier cases that, when organizations speak, they have less First Amendment protection than the rest of us.
Thats to say, if people pooled their resources into corporate groups to speak for them, they enjoyed less free speech protection and could be more heavily regulated.
Oral arguments in Citizens United did not go well for the Obama administration, as Solicitor General Elena Kagan was clearly outmatched by her opponent, former Bush Solicitor General Ted Olson.
What makes this case unusual is that the swing vote is not Justice Anthony Kennedy. Thats because Kennedy wrote strongly-worded dissents in both of the precedents that the Court is considering overturning, so hes on record as believing those cases are wrong.
So the attention shifted instead to Chief Justice John Roberts, especially since Roberts is the most stringent adherent to precedent on the Court, making him the most reluctant justice to overturn the two cases.
The Far Left is evidently terrified that Chief Justice Roberts will live up to the assurances he gave the country during his 2005 confirmation hearings. There, he said that he would give due regard to precedent, and saw a judges role as a modest one, applying the law to facts without regard to agendas, parties or outcomes. In doing so, he also acknowledged that sometimes precedent must be overruled.
So three spokesmen from the left wrote columns about this case, trying to sway Chief Justice Roberts.
First came E.J. Dionne, who isnt a lawyer but plays one on TV and whenever he writes anything about the Supreme Court. Dionne writes in the Washington Post that striking down this provision of BCRA and overturning these two older cases would, surrender control of our democracy to corporate interests. He then adds, This sounds melodramatic. It sure does.
He then goes from melodramatic to hysterical when he wails, Even the word radical does not capture the extent to which the justices could turn our political system upside down.
He misstates what the case is all about, although its unclear whether it's because hes trying to confuse people or maybe hes just confused himself. He says the Citizens United group objected to disclosing who financed their documentary about Hillary Clinton. No, they objected to the part of the law that said they could all go to federal prison for five years if any of their money went toward promoting the movie. Sounds different when you mention that fact, doesnt it?
Then law professor Jeffrey Rosen wrote in the New York Times. Rosen says that striking down this part of BCRA would forever make Roberts into a conservative Earl Warren, known for activist decisions and social engineering. Ironically, Rosen cited with approval the Courts 1964 case New York Times v. Sullivan (about suing a newspaper for defamation) that overturned 150 years of precedent.
The irony there is that he doesnt explain why Sullivan was a good idea, but striking down the failed censorship experiment from this part of BCRA is a bad idea. He only tells us that the 1964 case was unanimous, bizarrely suggesting that Roberts shouldnt vote to strike down this law unless he can persuade every member of the Court to do the same. (There are plenty of conservative precedents that I imagine Rosen would be perfectly happy to see overturned by a 54 vote.)
Then last is Stuart Taylor, the legal analyst for National Journal. Taylor fears Roberts will vote to overturn Austin and McConnell, warning that this would open him to charges of judicial activism. He advocates a golden opportunity for principled compromise that Roberts should instead exempt only certain groups like Citizens United from this law. He doesnt explain how this would remove the chilling effect this law would still have on countless others, with the threat of federal prison for anyone who guesses wrong on whether they are one of these special groups.
Fortunately, the chief justice of the United States is no fool, nor is he weak. John Roberts adheres to precedent unless there is an extraordinary reason to change it. This case presents such a reason, as it violates the core guarantee of being able to speak out about public issues.
This shows the wisdom of our Founding Fathers in creating a life-tenured judiciary. These liberal talking heads cant do anything to John Roberts, either good or bad. He holds his position for life, freeing him from political pressure so that he can uphold the Constitution without fear of consequences.
The reality is that there is nothing extreme about Justice Anthony Kennedy. Roberts vote doesnt create a majority unless Kennedy also votes that way. Saying that joining Kennedy on anything makes you an extremist is like calling Senators Ben Nelson and Olympia Snowe a couple of militant radicals. All that does is make the speaker look silly.
Theres no guarantee as to what Chief Justice Roberts will do. But he would serve the nation well to become the fifth vote in striking down this part of BCRA, and restoring to ordinary Americans the right to hold accountable those who seek the power to govern us.
LOL. That's just funny. The federal judiciary was perhaps the greatest error of all the errors the framers made.
The Founding Fathers DID NOT create a life-tenured judiciary.
The Constitution states in Article III, Section 1:
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour...
Finding "rights" under rocks and MAKING laws out of thin air or citing foreign law as a basis for their decisions, is NOT good behavior, or behaviour either.
You have your opinion about Justice Roberts; I have mine. The Chief Justice gave the “open” President a second oath of office in private. How’s that for doing the will of the President?
No one in Washington, DC is to be trusted.
If Roberts is doing such a bang up job, then why is he kicking back the birth certificate issue?
I didn’t write the article. The correct response would have been the author has his opinion, I have mine
Has the issue even been brought to the USSC?
That was my understanding. Maybe someone else can answer that. I’ve been out of the loop having been in the Philippines for the last few months but popped in here from time to time and it seemed like that Orly person had brought the case to the SCOTUS. If i’m mistaken, i apologize to everyone including CJ Roberts.
It would be nice to see Maverick, after this anticipated decision is announced, on his knees, thanking the Court for its opinion on this wretched law co-authored by John McCain, and begging the forgiveness of American citizens.
I have no faith in SCOTUS when it comes to campaign finance.
And the courts of law, which will be constituted by it, are not only to decide upon the constitution and the laws made in pursuance of it, but by officers subordinate to them to execute all their decisions.
The real effect of this system of government, will therefore be brought home to the feelings of the people, through the medium of the judicial power. It is, moreover, of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country.
They are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications.
The only causes for which they can be displaced, is, conviction of treason, bribery, and high crimes and misdemeanors.
I have come to believe as you do about the Supreme Court and Justice John Roberts has turned out to be one HUGE disappointment. He and his colleagues has absolutely NO right to ignore the Eligibility issue since it is a Constitutional one. Upholding the Constitution of the United States is in fact these Justices ONLY sworn duty. It is their Oath of Office. Alito and Thomas are about the very best there is left right now. However, let WE the People, PERSIST. CO
I have been wondering about “bribery”. Nothing else makes sense anymore. CO
I simply quoted the Constitution, which WAS the law of the land. Where is the argument from the Federalist papers?
Yes...several times before the election and immediately following.
Anybody know if anything ever came of this?