So three spokesmen from the left wrote columns about this case, trying to sway Chief Justice Roberts.
First came E.J. Dionne, who isn’t a lawyer but plays one on TV and whenever he writes anything about the Supreme Court. Dionne writes in the Washington Post that striking down this provision of BCRA and overturning these two older cases would, “surrender control of our democracy to corporate interests.” He then adds, “This sounds melodramatic.” It sure does.
He then goes from melodramatic to hysterical when he wails, “Even the word ‘radical’ does not capture the extent to which the justices could turn our political system upside down.”
He misstates what the case is all about, although it’s unclear whether it's because he’s trying to confuse people or maybe he’s just confused himself. He says the Citizens United group objected to disclosing who financed their documentary about Hillary Clinton. No, they objected to the part of the law that said they could all go to federal prison for five years if any of their money went toward promoting the movie. Sounds different when you mention that fact, doesn’t it?
Then law professor Jeffrey Rosen wrote in the New York Times. Rosen says that striking down this part of BCRA would forever make Roberts into a conservative Earl Warren, known for activist decisions and social engineering. Ironically, Rosen cited with approval the Court’s 1964 case New York Times v. Sullivan (about suing a newspaper for defamation) that overturned 150 years of precedent.
The irony there is that he doesn’t explain why Sullivan was a good idea, but striking down the failed censorship experiment from this part of BCRA is a bad idea. He only tells us that the 1964 case was unanimous, bizarrely suggesting that Roberts shouldn’t vote to strike down this law unless he can persuade every member of the Court to do the same. (There are plenty of conservative precedents that I imagine Rosen would be perfectly happy to see overturned by a 5–4 vote.)
Then last is Stuart Taylor, the legal analyst for National Journal. Taylor fears Roberts will vote to overturn Austin and McConnell, warning that this would open him to charges of judicial activism. He advocates a “golden opportunity for principled compromise” that Roberts should instead exempt only certain groups like Citizens United from this law. He doesn’t explain how this would remove the chilling effect this law would still have on countless others, with the threat of federal prison for anyone who guesses wrong on whether they are one of these special groups.
Fortunately, the chief justice of the United States is no fool, nor is he weak. John Roberts adheres to precedent unless there is an extraordinary reason to change it. This case presents such a reason, as it violates the core guarantee of being able to speak out about public issues.
This shows the wisdom of our Founding Fathers in creating a life-tenured judiciary. These liberal talking heads can’t do anything to John Roberts, either good or bad. He holds his position for life, freeing him from political pressure so that he can uphold the Constitution without fear of consequences.
The reality is that there is nothing extreme about Justice Anthony Kennedy. Roberts vote doesn’t create a majority unless Kennedy also votes that way. Saying that joining Kennedy on anything makes you an extremist is like calling Senators Ben Nelson and Olympia Snowe a couple of militant radicals. All that does is make the speaker look silly.
There’s no guarantee as to what Chief Justice Roberts will do. But he would serve the nation well to become the fifth vote in striking down this part of BCRA, and restoring to ordinary Americans the right to hold accountable those who seek the power to govern us.