Judicial Modesty and Campaign Finance Reform

Damon W. Root | September 14, 2009

In the run-up to last week's rehearing of the campaign finance reform case Citizens United v. FEC, a number of prominent liberal commentators argued that only a shamelessly "activist" Supreme Court would dare overturn its own campaign finance precedents. This weekend, George Washington University law professor Jeffrey Rosen added his voice to the chorus, focusing on Chief Justice John Roberts' famous preference for "judicial modesty." As Rosen wrote in The New York Times:

Many conservatives, and even some liberal devotees of the First Amendment, are urging the Roberts court to uproot federal and state regulations on corporate campaign spending that date back to 1907, as well as decades of Supreme Court precedents. If Chief Justice Roberts takes that road, his paeans to judicial modesty and unanimity would appear hollow.

I'm not a big fan of judicial restraint and I'm certainly not interested in defending Roberts' "paeans to judicial modesty," but what's so special about laws "that date back to 1907"? I'm pretty sure the First Amendment has been around longer than that. Besides, bad precedent can and should be overturned.

Comments

Joe M|9.14.09 @ 3:57PM|#

The Constitution is a living document. Except when it's not.

Joe M|9.14.09 @ 3:59PM|#

Second try: Is it fair to say we're living in the era of Zombie Constitution?

|9.14.09 @ 4:04PM|#

... some liberal devotees of the First Amendment...

How sad; it sounds like he thinks people who support free speech and the Constitution are some quaint niche group of hobbyists, like, "Civil War buffs" or "Atari 2600 enthusiasts."

Atari 2600 enthusiast|9.14.09 @ 4:12PM|#

Niche? Niche?

Bah.

alan|9.14.09 @ 4:19PM|#

If Chief Justice Roberts takes that road, his paeans to judicial modesty and unanimity would appear hollow.

Some alleged and shallowly argued differences between Robert's judicial temperment and what he professed in confirmation are more important that the substance of the case? From the tens of thousands of wasted ink and digits that have gone into making that argument, it seems they believe that to be true. Are they so smitten by this meme, they don't realize what fools it makes them appear to be?

|9.14.09 @ 4:26PM|#

Sotomayor lies through her teeth in her confirmation hearings yet not a peep from that hack Rosen. Roberts considers rectifying bad, obsolete law and he's a high criminal for uttering the phrase judicial modesty?

Sonya Sotomayor|9.14.09 @ 4:31PM|#

"Sotomayor lies through her teeth in her confirmation hearings yet not a peep from that hack Rosen."

I would hope that a lying Supreme Court nominee with the richness of her experiences would more often than not reach a better conclusion than a white male.

The ends justify the means you know.

Separate but equal|9.14.09 @ 4:39PM|#

Many conservatives, and even some liberal devotees of the First Amendment, are urging the Roberts court to uproot federal and state regulations on corporate campaign spending that date back to 1907, as well as decades of Supreme Court precedents.

That bastard! If a law lasts 100 years and is upheld six times, it's constitutional goddamit!

|9.14.09 @ 5:02PM|#

Don't you love how "judicial modesty" is invoked to enshrine previous court decisions?

Mad Max|9.14.09 @ 8:34PM|#

I would guess that many of the precedents being cited are about the power of states to regulate corporations which they (the states) chartered. The argument here would be that if a state creates a corporation, it has certain powers over its own creation.

Right or wrong, these precedents don't decide the issue of what powers the *federal* government has to limit the free expression of corporations which have been chartered by states. As far as I know, the corporations the feds are trying to regulate in the name of 'campaign finance' are not federally-chartered, but state-chartered entities having an existence independent of federal authority.

But nice try.