John Roberts is proving to be a poor choice as Supreme Court Chief Justice, and even the American Enterprise Institute sees it. Norman J. Ornstein:
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.
….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.