Writing about yesterday's Caperton decision, Paul Campos criticizes the logic of the Roberts dissent:
The only way the facts in Capteron could be more egregiouswould be if the litigant had sent a certified letter to the judgetelling him he'd give his campaign three million bucks if the judgecast the deciding vote the right way in the litigant's $50 millionlawsuit.
[...]
Roberts' dissent adds up to the claim that drawing any line in thesecircumstances is worse than drawing no line at all, because of slipperyslope concerns. That's the same logic that leads some first amendmentabsolutists to claim laws against child pornography areunconstitutional -- and it's about as plausible.
And I think it's even worse than that. The slippery slope argumentagainst criminalizing child pornography obviously fails because of itsimplausibility, but at least what's at the bottom of that alleged slope-- the censorship of genuine works of art, political speech, etc. --really is bad. On the other hand, Roberts' attempted parade of horribles is rather distinctly non-horrible. What exactly are we supposed to be scared of here -- corporations being less likely to buy elections? Judges being more willing to recuse themselves in cases where there's an egregious potential conflict of interest? Judges applying discretion to decide tough cases (or, as we might call it, "appellate judges doing their job?") I'm not really seeing the bad consequences that would justify having no standards at all, as Roberts would prefer.
--Scott Lemieux
