I was going to write about Vice President Cheney’s astonishing logic to rationalize his refusal to comply with an executive order to protect classified material, which caused fits of uncontrollable laughter among constitutional scholars and lawyers across the country. Of all people to argue that he is not part of the executive branch! But enough has been written on this surreal event. [IMGCAP(1)]
Instead, I turn to the Supreme Court’s decisions this week. When John Roberts was proposed for chief justice, I wrote a strongly supportive column, based largely on my own experience working with him to find an alternative to the independent counsel statute. He was clearly very conservative, and also deep, thoughtful, careful and not ideologically rigid. He did not seem to be someone who would try to move the court by pushing for hard-edged, divisive, ideologically driven decisions.
He did seem to be someone who would be respectful of stare decisis and would move to change the court in small steps, using a more consensus-driven approach, looking for narrow solutions that could command 9-0 or 8-1 decisions, rather than 5-4 votes. Such narrow decisions ultimately erode the legitimacy of the Supreme Court because they underscore a sense that rulings are not driven by careful adherence to law and precedents but by the political calculus, based on who retires and which president gets to make the replacement.
In his initial service on the court, I was encouraged that Roberts would fit that institution-building mold, working with a like- minded institutionalist on the other side of the philosophical divide, Associate Justice Stephen Breyer. Now, with the decisions this week, I see that I was wrong. We have fallen into a pattern of key decisions that come down 5-4, with Roberts and the more rigid Samuel Alito joining Antonin Scalia, Clarence Thomas and Anthony Kennedy to throw out precedents established only a few years ago, all driven not by changes in the law or objective deliberations over facts, but by the simple fact that Sandra Day O’Connor left the court and was replaced by a more conservative justice.
The Wisconsin Right to Life case was couched by Roberts in careful, narrow terms, but was not simply a tiny adjustment in campaign finance law. It was a direct, in-your-face rejection of a key part of the Bipartisan Campaign Reform Act. The decision reopened a huge loophole that had been closed by Congress through a careful, narrow, deliberative approach. Congress, contrary to the overheated rhetoric of reform opponents, did not ban any ads. It took phony issue ads that were designed to elect or defeat candidates and made sure they used only the same funds that other campaign communications used. It did so by setting a clear, bright-line standard so it was evident to all what the rules were for funding broadcast ads close to an election.
Roberts erased the bright line and basically dissed Congress. He turned the process for defining such ads on its head, making it almost impossible to define what constitutes a campaign ad. The practical reality of Roberts’ new standard is that if anyone simply asserts that an ad is about an issue, no matter how slender the pretext or blatant the campaign message, the entity or shell organization funding the ad can use corporate funds or union dues and get away with it. The floodgates have been opened up again, to the detriment of our campaign discourse, and huge, corrupting money will be back in the game as a result. Just as important, it shows not a careful, conservative deference to Congress, which made BCRA a model of careful, reasoned deliberation relying on research, data and on the court’s reasoning in Buckley v. Valeo, but a willingness by Roberts to toss aside Congress’ conclusions to fit his own ideological predispositions.
Sen. John McCain (R-Ariz.) and others are right that it could have been much worse; the critical core of BCRA remains and only three justices — Scalia, Thomas and Kennedy — indicated their willingness to throw the whole law out. But it is not a good sign either for campaigns or for the future integrity of the court.
The Supreme Court’s concern about the First Amendment took a totally different turn the same day with the decision involving freedom of speech by students. Although the banner “Bong Hits 4 Jesus” unfurled by Joseph Frederick across the street from his Juneau, Alaska, school could mean anything — and probably simply meant “Look at me! Look at me!” — Roberts used exactly the opposite standard for freedom that he applied to WRTL, assuming that the meaning of the banner was encouragement of illegal drug use. That was his pretext for denying Frederick’s speech rights. In his WRTL decision Roberts wrote, “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.” Apparently, that principle applies only where it fits the ideological predisposition of the chief. And once again, we saw a willingness to go with a deeply divisive 5-4 pattern that ultimately will be bad for the court and bad for the country.
At some point, a Democratic president will have opportunities to replace current members of the court, and the margins will change the other way. What Roberts is doing is adding to the likelihood that those appointments will fit an ideological pattern on the other side, to shift 5-4 decisions the other way. That won’t be any better. Of course, Roberts is not the only actor here; Kennedy is now the critical fifth vote, and he has jumped into the divisive fray himself. But Roberts is the chief justice. I thought from his confirmation hearings that this would be a different court, moving to the right but in a less divisive way. It appears I was wrong.
Norman Ornstein is a resident scholar at the American Enterprise Institute.