Don't Be Fooled By Faux Judicial Restraint.

This Wednesday, the Supreme Court will hear oral arguments in a major case -- Citizens United v. Federal Election Commission -- concerning the ability of legislatures to regulate corporate election spending. Robert Barnes's article about the case centers around the question of whether the Court will overrule past precedents. Given the focus on Roberts and Alito, however, focusing on whether the Supreme Court will explicitly overrule precedents is potentially very misleading.

It is true that Alito and Roberts have been more reluctant to explicitly overrule precedents than their similarly conservative colleagues. In practice, however, this has been a distinction without a difference. In the most recent major campaign finance case, Wisconsin Right To Life, Roberts' opinion striking down campaign finance restrictions while nominally upholding past precedents suggesting much more legislative leeway drew this acerbic (and accurate) response from Scalia:

Indeed, the principal opinion’s attempt at distinguishing McConnell is unpersuasive enough, and the change in the law it works is substantial enough, that seven Justices of this Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so. This faux judicial restraint is judicial obfuscation.

What's important, in other words, is not how Roberts and Alito choose to characterize past precedents, but what their application (or, much more likely, non-application) of these precedents means both for the case at hand and for future cases. In fairness, Barnes midway through the article gets to the heart of the issue, noting that a superficially "minimalist" approach "may simply be a way to make more-sweeping decisions appear inevitable." Exactly.

--Scott Lemieux

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