John Roberts Unwittingly Paves the Way for Eventual Wholesale Liberal Judicial Repeal of Statutes, Too

Chief Justice Roberts’ attempt to portray his decision in McCutcheon v. FEC as minimalist actually shows just how far from minimalist it is. According to the Chief Justice, no one should worry about the consequences of the Court’s decision because “there are multiple alternatives available” that would accomplish the Government’s asserted interest without, in the majority’s view, unnecessarily abridging First Amendment rights.  It would be a comforting thought if there were any truth to it.  But as Rick has pointed out, there is no chance that these alternatives will come to pass: Congress is not going to pass any new campaign finance laws (this Congress barely passes any laws at all, as the Chief surely knows), and the FEC is not going to strengthen its enforcement of existing laws (Republican commissioners on the FEC are no more in favor of campaign finance regulation than Republican members of Congress).

But what today’s Congress would do tells us little, if anything, about what the Congress that enacted the aggregate contribution limit would have done had it known that the Supreme Court would conclude that aggregate contribution limits are unconstitutional.  Would it have adopted one or more of the Chief’s proposed alternatives?  Quite possibly.  And that fact illustrates one of the most problematic, but also overlooked, aspects of judicial review—that it can produce disruptions to democratic preferences that are not constitutionally required.

— The False Minimalism of John Roberts, Brianne Gorod, Election Law Blog, Apr. 8

John Roberts’ Apr. 2 opinion in McCutcheon v. FEC is the opinion that keeps on giving, to liberal legal geeks, anyway. The opinion contains so many controversial (and, in my opinion, downright weird) statements–redefinitions of common English-language words and phrases, sophistic purported analogies, tautologies, and jaw-droppingly overt hypocrisy–that law professors, legal journalists, and hobbyist bloggers (like me!) no sooner finish writing about one statement in the opinion than we think of another aspect of the opinion that we want to write about.

I myself am pretty much McCutcheoned out by now, but before I take a break from it, I want to make two suggestions to progressives.  One is that they look ahead to when the current ideological majority no longer holds the majority–Ginsburg and Breyer are not the only justices who are aging, Ginsburg is not the only one who has health problems–and start selecting various statutes they dislike, and plan to challenge them as unconstitutional. As Gorod writes:

Judicial review is generally (and rightly) justified as an integral part of our constitutional system; it ensures that laws and regulations are consistent with our nation’s highest law.  In McCutcheon, the Court’s majority claims that the aggregate contribution limits cannot stand because they violate the First Amendment.  Whether one agrees with that conclusion or not (and as I and others have written, there are many reasons to disagree with it), most would find unobjectionable the general principle that laws that are inconsistent with the Constitution should not stand.  But as I have written elsewhere, judicial review often produces disruptions to democratic preferences that are not constitutionally required, and that is a much more significant problem.

Gorod, and others, detail a hallmark of Roberts’ strategy: Striking down as unconstitutional some key portion of an ideologically charged statute, and recommend possible substitute statutes and pronounce the ruling therefore minimalist although the substitutes could not be enacted in the current political climate and under current Citizens United-effectuated funding realities.  Roberts is fabricating constitutional grounds upon which to effectively repeal statutes enacted by earlier congresses. But by removing the institutional barriers to judicial repeal of statutes via semantics and gimmickry, he’s establishing precedent for progressives to do the same down the road.

There are a number of federal statutes I can think of that are excellent candidates for eventual liberal judicial repeal, now that the standard for judicial repeal has been so starkly and plainly lowered.  But one easy one is the Federal Arbitration Act, which, as written, is not unconstitutional, but which, as effectively rewritten by the 5-4 crowd, arguably is.  But there’s no longer any need for progressive justices, once they gain a majority, to limit themselves to striking down statutes that are, or are being interpreted in ways that make them, objectively or even arguably unconstitutional.  All that’s necessary going forward is a redefinition of a common word or phrase, and a transparently false analogy or two, and … voila!  What Roberts thinks is clever manipulation, I view as playing with fire.

Including backfire.

In another post, I’ll suggest that Congress or the SEC can prohibit publicly-traded corporations from making political expenditures (or, eventually, because that soon will become necessary, direct corporate campaign contributions) unless the corporation first gets approval from a majority of its shareholders.


Cross-posted at The Law of the Jungle.