A word on McCutcheon and the Court that Politics has Given Us

The U.S. Supreme court issued this morning its long-awaited opinion in McCutcheon v. Federal Election Commission.  The result surprised no one.  Under federal law, an individual could could give $5,200 to a candidate over a two-year election cycle, yet no more than $48,600 as a whole.  This meant than an individual could give to only 9 candidates in order to comply with the law.  Similarly, federal law imposed an "aggregate limit" of $74,600 on contributions to all political parties and political action committees.

No longer.

In a 5-4 decision, the Court struck down these "aggregate limits" as unconstitutional under the First Amendment.  In an opinion authored by Chief Justice Roberts, the Court could find no governmental interest that would justify these aggregate limits.

Commentators will have a lot to say about this case, even though there is very little new here.  We have seen this before.  The money line comes from Justice Breyer's dissent, right at the end:

The result, as I said at the outset, is a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform.

Tell me if you haven't seen this before. The template could not be any clearer. This is Shelby County redux.  Remember how in Shelby County, the Court essentially substituted its views about racial discrimination in voting for the record compiled by Congress, a record with which it refused to engage?  Remember also how Shelby County bootstrapped arguments made in dictum in a prior case -- Namudno v. Holder -- and then passed them along as settled law?  Remember also how Shelby County overturned key precedents while pretending to do no such thing?  And finally, who could forget that Shelby County undermined -- nay, devastated -- the crown jewel of the civil rights movement?

Every time I read one of the doozies from the Roberts Court, I am reminded of Philip Kurland snarky yet paradoxically delightful Harvard foreword, published in 1964.  The closing is remarkable in many ways. Take a look:

The time has probably not yet come for an avowal that, in the field of public law, "judicial power" does not describe a different function but only a different forum and that the subject of constitutional law should be turned back to the political scientists. These students of political affairs realized, before lawyers did, that the true measure of the Court's work is quantitative and not qualitative. The Court will continue to play the role of the omniscient and strive toward omnipotence. And the law reviews will continue to play the game of evaluating the Court's work in light of the fictions of the law, legal reasoning, and legal history rather than deal with the realities of politics and statesmanship.

I wonder what Kurland -- the preeminent conservative critic of the Warren Court -- would say about the Roberts Court.  We have an idea.  When he testified during the Bork hearings, he said the following about stare decisis:  "But once the Court has rendered its decision, I think that the fact that it is based on erroneous reasoning or poor precedent or doctrine does not in any way make it an invalid, unconstitutional or reversible opinion for that reason." The Roberts majority has decidedly different ideas.

In the meantime, the law reviews will continue to pretend that there is a legal logic to all of this, and that the conservative majority is playing by the rules laid down.  But there is clearly a much different story at play.  This is not law as reasoned elaboration, but law as power.  This is Thrasymachus, not Socrates.

Whatever happened to judicial restraint and the famed countermajoritarian difficulty?

I am being facetious, of course.  Here's what happened: critics of the Warren Court won elections, took over the Court, and are now reaping the benefits.  Judicial restraint plays no role in this story.  Not that there's anything wrong with that.  But at least let's call it what it is.

This leaves me with two questions.  The first looks to the recent past, and particularly to the 2000 Election. For those who thought that Bush and Gore were one and the same, I wonder what they think about the Roberts Court.

The second question is for the Court's cheerleaders, those who find themselves today on the right side of 4.  Do they really believe that they are fighting, as Randy Barnett wrote, "to save the Constitution for our country?"  Do they really believe, as Jim Bopp wrote in a press release after the McCutcheon, that the ruling is "a great triumph for the First Amendment"?

Better question: had these great champions of the Constitution been around in 1964, what would they have said then?

We can only wonder.