Commentary Magazine


Topic: Anthony Kennedy

An Enormous Expansion of Federal Powers

The most important sentence in Justice Roberts’s opinion yesterday upholding the Affordable Care Act is the least arresting. The new ObamaCare tax, which Roberts created in order to uphold the Act, “makes going without insurance just another thing the government taxes, like buying gasoline or earn­ing income.”

Despite Roberts’s blithe assurance that a tax on “going without insurance” is nothing new, the fact is that this one sentence expands the powers of the federal government beyond anything previously known. For the first time in U.S. history, the government may tax what you and I do not do. Roberts calls these failures to act “omissions.” For the life of me, I can’t think of an omission — a refusal to act — the government now taxes. Penalties may be imposed for failing to do something (library fines for not returning a book on time, speeding tickets for not observing the speed limit, restaurant fines for not adhering to the health code). But even these require affirmative acts first: I must first check out the book, drive too fast, open a restaurant and scatter food about for the roaches and the rats. But just sitting around and minding my own business? For the first time in U.S. history, I can be taxed for that.

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The most important sentence in Justice Roberts’s opinion yesterday upholding the Affordable Care Act is the least arresting. The new ObamaCare tax, which Roberts created in order to uphold the Act, “makes going without insurance just another thing the government taxes, like buying gasoline or earn­ing income.”

Despite Roberts’s blithe assurance that a tax on “going without insurance” is nothing new, the fact is that this one sentence expands the powers of the federal government beyond anything previously known. For the first time in U.S. history, the government may tax what you and I do not do. Roberts calls these failures to act “omissions.” For the life of me, I can’t think of an omission — a refusal to act — the government now taxes. Penalties may be imposed for failing to do something (library fines for not returning a book on time, speeding tickets for not observing the speed limit, restaurant fines for not adhering to the health code). But even these require affirmative acts first: I must first check out the book, drive too fast, open a restaurant and scatter food about for the roaches and the rats. But just sitting around and minding my own business? For the first time in U.S. history, I can be taxed for that.

Now, it may be objected that Roberts is entirely correct. This is nothing new. The government has been taxing inactivity and omissions for a long time. On some such understanding, income-tax deductions for you are taxes on me. I rent my house; you own yours. You get the mortgage deduction; I pay a higher tax than you — a renter’s tax, you see, a tax on not owning a home.

But this objection is broken-backed. Here’s why. If you were to start over, designing a tax code from scratch, and if you wanted to begin by imposing a tax on renters, how would you do so? By taxing renters. For the affirmative act of renting a place to live. In the absence of a tax on homeowners, however, this newfangled renter’s tax could hardly be described as a tax on the omission of not owning a home. Next you might impose a tax on cigarettes. But would you call this a tax on not not smoking? Ockham’s razor would slice away the double negative: it’s simply a tax on smoking.

Under the current system, moreover, you can forego the mortgage deduction, placing yourself on the same tax level as us renters. Granted, it’s unlikely that you will ever do so — but (in language that Justice Roberts uses elsewhere in his opinion) it’s “fairly possible.” The mortgage deduction is optional. Not the ObamaCare tax, though. If I don’t pay it (and don’t pay for health insurance either), the IRS can withhold my tax refund. The ObamaCare tax is mandatory. For the first time in U.S. history, the federal government is empowered to impose a mandatory tax on the failure or refusal to act.

Justice Roberts anticipated these criticisms. “Even if only a tax,” he said, the payment due for not buying health insurance “remains a burden that the federal government imposes for an omission, not an act.” He tried to “allay” this “concern” by observing that the ObamaCare tax “nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.”

But this “choice” is an illusion of choice. When it comes to cigarette taxes or gasoline taxes, I have a real choice — I can choose not to smoke, not to drive. My choice is between activity and inactivity. Omission waives the tax. When it comes to the ObamaCare tax, however, my choice is to pay or pay. Either I pay for health insurance or I pay the tax. My choice is between two variations of the same activity. The government is compelling me to action I might otherwise not have taken.

The familiar example of something the government might compel U.S. taxpayers to purchase is broccoli. Justice Ruth Bader Ginsburg dismisses this example as “the broccoli horrible.” But in his dissent, Justice Anthony Kennedy takes it seriously. What if broccoli were found to contain unique cancer-fighting properties? Your refusal to consume it would then produce “health-care costs that are a burden on the rest of us,” Kennedy said, in which case — on the logic of the ObamaCare tax — “moving against those inactivities will also come within the federal government’s unenumerated problem-solving powers.”

Anyone who believes this is an abstract phobia has not been paying attention to the culture during the past two decades. All sorts of omissions have come under attack in recent years — pharmacists who refuse to dispense abortifacients, churches and yeshivot that refuse to ordain women, institutions and jurisdictions that refuse to recognize same-sex marriages, golf clubs that refuse to admit women. Statistical disparities are advanced as prima facie evidence of omission — higher average salaries for men than women (or higher average salaries for whites than blacks), magazines that publish fewer women than men (or fewer blacks than whites), schools with lower admission rates for blacks than whites (they rarely have too few women). The new taxing authority created out of whole cloth by Justice Roberts is a powerful tool for compelling compliance with the cultural fashion of the moment. Augusta National can now be taxed for refusing to admit women, and wedding photographers can now be taxed for refusing to snap pictures at same-sex nuptials.

By creating the ObamaCare tax, the Supreme Court of the United States has created a means for the federal government to slap a price on non-conformity.

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A Bad Day in Court?

The conventional wisdom from “experts’” polling has been that President Obama’s health care reform law is likely to be upheld by the Supreme Court. But after today’s arguments, it sounds like that narrative may have changed. CNN’s senior legal analyst Jeffrey Toobin, who previously predicted that the Obama administration would prevail at the Supreme Court, came out of the hearing today with a very different perspective. Via HotAir:

The Supreme Court just wrapped up the second day of oral arguments in the landmark case against President Obama’s healthcare overhaul, and reports from inside the courtroom indicate that the controversial law took quite a beating.

Today’s arguments focused around the central constitutional question of whether Congress has the power to force Americans to either pay for health insurance or pay a penalty.

According to CNN’s legal analyst Jeffrey Toobin, the arguments were “a train wreck for the Obama administration.”

“This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong,” Toobin just said on CNN.

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The conventional wisdom from “experts’” polling has been that President Obama’s health care reform law is likely to be upheld by the Supreme Court. But after today’s arguments, it sounds like that narrative may have changed. CNN’s senior legal analyst Jeffrey Toobin, who previously predicted that the Obama administration would prevail at the Supreme Court, came out of the hearing today with a very different perspective. Via HotAir:

The Supreme Court just wrapped up the second day of oral arguments in the landmark case against President Obama’s healthcare overhaul, and reports from inside the courtroom indicate that the controversial law took quite a beating.

Today’s arguments focused around the central constitutional question of whether Congress has the power to force Americans to either pay for health insurance or pay a penalty.

According to CNN’s legal analyst Jeffrey Toobin, the arguments were “a train wreck for the Obama administration.”

“This law looks like it’s going to be struck down. I’m telling you, all of the predictions including mine that the justices would not have a problem with this law were wrong,” Toobin just said on CNN.

The Washington Examiner’s Phil Klein reports the conservative justices seemed highly skeptical of the administration’s arguments during questioning, despite speculation that Chief Justice Roberts might rule in favor of upholding the law. Justice Kennedy, who is most likely to be the deciding vote, also appeared dubious:

Justice Anthony Kennedy, long seen as the swing vote in the case, repeatedly said that the mandate was unprecedented and that the government had a “heavy burden” to justify it. He said that it changed the relationship between the individual and the government in a “fundamental” way.

Also, one of the key arguments made by challengers in the case, is that earlier rulings of the Commerce Clause don’t apply here because the mandate forces people to enter the stream of commerce. On this point, Kennedy asked Obama’s Solicitor General Donald Verrilli, “Can you create commerce in order to regulate it?”

The argument today centered on whether or not the individual mandate is a tax. The administration maintains it is a tax, which gives Congress the constitutional authority to implement it. By all accounts, the justices didn’t seem to accept that characterization of the mandate today. But of course, this is all speculation based on the questions and tone from the justices – which isn’t always an accurate indicator of where they stand – and there’s still another day of arguments tomorrow.

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A Very Fundamental Change

In oral argument today in the Supreme Court regarding the individual mandate in the Affordable Care Act, Justice Anthony Kennedy–almost certainly the swing vote here–said the following to the Solicitor General (page 30 of the transcript, which, along with the audio, can be found here):

JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

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In oral argument today in the Supreme Court regarding the individual mandate in the Affordable Care Act, Justice Anthony Kennedy–almost certainly the swing vote here–said the following to the Solicitor General (page 30 of the transcript, which, along with the audio, can be found here):

JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.

And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

If Justice Kennedy thinks this law changes the relationship between the federal government and individual citizens in a “very fundamental way,” how can he vote to uphold making that change by mere statute? The fundamental relationship between government and citizen can only be changed by changing the fundamental law that governs that relationship, i.e., the United States Constitution.

 

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Let’s Not Forget the Letter

Lost in the rush of polls and soon to be forgotten (as the Democrats begin the blame-a-thon, and the moving vans arrive to pack off the casualties of Obamaism) was a multi-car pile-up in the left lane of legal scholarship. The culprit, we are reminded by the scalding wit of this observer, was Harvard law professor and Supreme Court advocate Laurence Tribe, who managed in a letter to his former student and now president to embarrass two Supreme Court justices (Sonia Sotomayor, for limited intellect; and Anthony Kennedy, for being perpetually influenced and never influencing). But it is Tribe’s own toadyism that is the real cringe-inducer. (It is not often we see such “pathetic grovelling and job-begging” from Harvard’s best-known liberal prof).

But that got me thinking. Doesn’t Tribe’s warning about Sotomayor’s shortcomings apply with equal force to Obama, himself?

Bluntly put she’s he’s not nearly as smart as she he seems to think she he is, and her his reputation for being something of a bully could well make her his liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas conservative wing of the Court GOP.

You can understand why Obama and Sotomayor were sympatico.

And second, we must hold Tribe and the rest of the Harvard faculty partially responsible for the president’s distorted self-image. Those who were witnesses to Obama’s years as a law student can vouch that Tribe and his colleagues were no less slobbery when it came to student Obama some decades ago. They had their eye on him and figured he’d go far. His every word elicited praise. And as with the professors’ cooing, his placement on the Harvard Law Review was, it seems, based on factors other than legal scholarship, of which he produced none.

It is a pity that Sotomayor, Obama, and many less prominent names wind up with oversized egos and jobs for which they are underqualified. For that, as with so many other counterproductive contributions, we can blame, to some degree, the leftist intelligentsia who populate academia and the mainstream media. We often bear the brunt of their obsession with “diversity” (oh heavens, not the intellectual variety!) and their assurance that liberal conformity=brilliance and glibness=intellectualism. The good news is that the mainstream media are dying, and there is an election in 2012. The bad news: Sotomayor is there for life.

Lost in the rush of polls and soon to be forgotten (as the Democrats begin the blame-a-thon, and the moving vans arrive to pack off the casualties of Obamaism) was a multi-car pile-up in the left lane of legal scholarship. The culprit, we are reminded by the scalding wit of this observer, was Harvard law professor and Supreme Court advocate Laurence Tribe, who managed in a letter to his former student and now president to embarrass two Supreme Court justices (Sonia Sotomayor, for limited intellect; and Anthony Kennedy, for being perpetually influenced and never influencing). But it is Tribe’s own toadyism that is the real cringe-inducer. (It is not often we see such “pathetic grovelling and job-begging” from Harvard’s best-known liberal prof).

But that got me thinking. Doesn’t Tribe’s warning about Sotomayor’s shortcomings apply with equal force to Obama, himself?

Bluntly put she’s he’s not nearly as smart as she he seems to think she he is, and her his reputation for being something of a bully could well make her his liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas conservative wing of the Court GOP.

You can understand why Obama and Sotomayor were sympatico.

And second, we must hold Tribe and the rest of the Harvard faculty partially responsible for the president’s distorted self-image. Those who were witnesses to Obama’s years as a law student can vouch that Tribe and his colleagues were no less slobbery when it came to student Obama some decades ago. They had their eye on him and figured he’d go far. His every word elicited praise. And as with the professors’ cooing, his placement on the Harvard Law Review was, it seems, based on factors other than legal scholarship, of which he produced none.

It is a pity that Sotomayor, Obama, and many less prominent names wind up with oversized egos and jobs for which they are underqualified. For that, as with so many other counterproductive contributions, we can blame, to some degree, the leftist intelligentsia who populate academia and the mainstream media. We often bear the brunt of their obsession with “diversity” (oh heavens, not the intellectual variety!) and their assurance that liberal conformity=brilliance and glibness=intellectualism. The good news is that the mainstream media are dying, and there is an election in 2012. The bad news: Sotomayor is there for life.

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Campaign Finance Bill Blows Up

Maybe it was a devilishly clever plan. The NRA struck a deal with House Democrats to exempt it from a noxious campaign finance bill intended as an end-around the Supreme Court’s decision in Citizens United. And the entire bill blew up:

Following a rebellion by two important factions of rank-and-file House Democrats, Speaker Nancy Pelosi (D-Calif.) has pulled a campaign-finance bill opposed by a broad coalition of special interest groups, including the U.S. Chamber of Commerce. Pelosi and other Democratic leaders had scheduled a Friday vote on the DISCLOSE Act, a bill requiring special-interest groups to disclose their top donors if they choose to run TV ads or send out mass mailings in the final months of an election. The legislation is designed to roll back the controversial Supreme Court decision in the Citizens United case, which overturned restrictions on corporate campaign activities. But after complaints from the conservative Blue Dogs and the Congressional Black Caucus, Pelosi was forced to pull the bill on Thursday night.

It seems there was something for everyone to hate:

The Blue Dogs are concerned that opposition from the Chamber, National Federation of Independent Business, National Association of Realtors and other business groups will damage their reelection prospects in the fall. The CBC, on the other hand, was unhappy about an exemption to the bill granted to the National Rifle Association agreed to by Van Hollen. While the exemption was later extended to other groups, the CBC remained concerned about the bill’s potential impact on the NAACP and other progressive groups.

That’s more revealing than anything said on the subject. The name of the game is to shut up the “other guy.” But if your guy’s First Amendment rights are going to be curtailed, well then it’s an outrage. That is precisely the mentality Justice Anthony Kennedy rejected in his majority opinion. It is fitting that in the scramble to limit speech, House Democrats learned how valuable it was to their own supporters. Now if they would only learn to safeguard that same right for their opponents.

Maybe it was a devilishly clever plan. The NRA struck a deal with House Democrats to exempt it from a noxious campaign finance bill intended as an end-around the Supreme Court’s decision in Citizens United. And the entire bill blew up:

Following a rebellion by two important factions of rank-and-file House Democrats, Speaker Nancy Pelosi (D-Calif.) has pulled a campaign-finance bill opposed by a broad coalition of special interest groups, including the U.S. Chamber of Commerce. Pelosi and other Democratic leaders had scheduled a Friday vote on the DISCLOSE Act, a bill requiring special-interest groups to disclose their top donors if they choose to run TV ads or send out mass mailings in the final months of an election. The legislation is designed to roll back the controversial Supreme Court decision in the Citizens United case, which overturned restrictions on corporate campaign activities. But after complaints from the conservative Blue Dogs and the Congressional Black Caucus, Pelosi was forced to pull the bill on Thursday night.

It seems there was something for everyone to hate:

The Blue Dogs are concerned that opposition from the Chamber, National Federation of Independent Business, National Association of Realtors and other business groups will damage their reelection prospects in the fall. The CBC, on the other hand, was unhappy about an exemption to the bill granted to the National Rifle Association agreed to by Van Hollen. While the exemption was later extended to other groups, the CBC remained concerned about the bill’s potential impact on the NAACP and other progressive groups.

That’s more revealing than anything said on the subject. The name of the game is to shut up the “other guy.” But if your guy’s First Amendment rights are going to be curtailed, well then it’s an outrage. That is precisely the mentality Justice Anthony Kennedy rejected in his majority opinion. It is fitting that in the scramble to limit speech, House Democrats learned how valuable it was to their own supporters. Now if they would only learn to safeguard that same right for their opponents.

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Is Kagan the Left’s O’Connor?

Michael Gerson writes:

Kagan has been a leader in the field of law without having a distinctive legal voice. She has been a leader in academia without having left a discernible academic mark. We know little about her views and values — and we are not intended to know much about them. This has become the path of least resistance to the Supreme Court — being eminent without being conspicuous. …

Yet Kagan’s expansive silence leaves a broad range of plausible interpretations. Is she a temperamental moderate who doesn’t like comprehensive pronouncements or judicial activism of any kind? Is she a consensus-oriented liberal who will be able to pull Justice Anthony Kennedy to the left on key votes? Is she is a committed progressive who has carefully hidden her views? Is it possible Kagan lacks any well-formed constitutional perspective at all? Who knows? Who could possibly know?

Conservatives are tempted to scoff — Obama wouldn’t have nominated anyone he had any doubt was a committed judicial activist, right? Let’s be honest: Kagan’s a Democrat and a liberal — we know that from her service in two administrations and her plentiful political donations to Democratic candidates. But the problem with ciphers — as Obama should know all too well — is that they have the ability to convince diametrically opposing combatants that they are “with you.”

So we don’t know how doctrinaire or malleable she is and how much respect she has for precedent. Is she going to be the left’s Sandra Day O’Connor or its Clarence Thomas? For conservatives, it’s nice to think we have a chance to see the other side “waste” a Supreme Court pick for a change. But we shouldn’t bank on it.

Michael Gerson writes:

Kagan has been a leader in the field of law without having a distinctive legal voice. She has been a leader in academia without having left a discernible academic mark. We know little about her views and values — and we are not intended to know much about them. This has become the path of least resistance to the Supreme Court — being eminent without being conspicuous. …

Yet Kagan’s expansive silence leaves a broad range of plausible interpretations. Is she a temperamental moderate who doesn’t like comprehensive pronouncements or judicial activism of any kind? Is she a consensus-oriented liberal who will be able to pull Justice Anthony Kennedy to the left on key votes? Is she is a committed progressive who has carefully hidden her views? Is it possible Kagan lacks any well-formed constitutional perspective at all? Who knows? Who could possibly know?

Conservatives are tempted to scoff — Obama wouldn’t have nominated anyone he had any doubt was a committed judicial activist, right? Let’s be honest: Kagan’s a Democrat and a liberal — we know that from her service in two administrations and her plentiful political donations to Democratic candidates. But the problem with ciphers — as Obama should know all too well — is that they have the ability to convince diametrically opposing combatants that they are “with you.”

So we don’t know how doctrinaire or malleable she is and how much respect she has for precedent. Is she going to be the left’s Sandra Day O’Connor or its Clarence Thomas? For conservatives, it’s nice to think we have a chance to see the other side “waste” a Supreme Court pick for a change. But we shouldn’t bank on it.

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Liberals Hope to Do Better than Sotomayor

The quiet buzz of anticipation is bubbling up into news accounts: one or more Supreme Court justices may step down this year. Justice Ruth Bader Ginsburg has not been in good health, and Justice John Paul Stevens will be 90 in June. With a wave election anticipated and more Republicans on the way to the Senate, now may be the time for “liberal” judges to step down in hopes of having their spots filled by equally “liberal” justices.

What is interesting in all the buzz is the candor with which the Left now admits that Sonia Sotomayor was a dud. This report is typical:

Some liberals lamented that she lacked the provocative philosophical profile that Republican administrations have sought in some of their most important judicial nominees, such as Justice Antonin Scalia, a Reagan appointee who has popularized a conservative approach to legal interpretation.

Some liberals complain that she isn’t liberal enough. Others delicately put it that she is not a “trailblazer” or a “Scalia of the Left.” Translation: she lacks the intellectual firepower to go toe-to-toe with justices who rely on judicial originalism and to sway Justice Anthony Kennedy to their side. She was Latina but not very wise, they now concede.

So the battle is on between Democrats who want a liberal firebrand and those who’d like someone easily confirmable who won’t set off a titanic fight over abortion, guns, and other losing issues for Democrats in an election year. Conservatives would do well to stay mum at this point. It’s never a good idea to get in the middle of the opposition’s  internal spat.

The quiet buzz of anticipation is bubbling up into news accounts: one or more Supreme Court justices may step down this year. Justice Ruth Bader Ginsburg has not been in good health, and Justice John Paul Stevens will be 90 in June. With a wave election anticipated and more Republicans on the way to the Senate, now may be the time for “liberal” judges to step down in hopes of having their spots filled by equally “liberal” justices.

What is interesting in all the buzz is the candor with which the Left now admits that Sonia Sotomayor was a dud. This report is typical:

Some liberals lamented that she lacked the provocative philosophical profile that Republican administrations have sought in some of their most important judicial nominees, such as Justice Antonin Scalia, a Reagan appointee who has popularized a conservative approach to legal interpretation.

Some liberals complain that she isn’t liberal enough. Others delicately put it that she is not a “trailblazer” or a “Scalia of the Left.” Translation: she lacks the intellectual firepower to go toe-to-toe with justices who rely on judicial originalism and to sway Justice Anthony Kennedy to their side. She was Latina but not very wise, they now concede.

So the battle is on between Democrats who want a liberal firebrand and those who’d like someone easily confirmable who won’t set off a titanic fight over abortion, guns, and other losing issues for Democrats in an election year. Conservatives would do well to stay mum at this point. It’s never a good idea to get in the middle of the opposition’s  internal spat.

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Supreme Court Vindicates Political Speech, Pulverizes McCain-Feingold

In a landmark 5-to-4 ruling, the Supreme Court today in Citizens United v. FEC struck down major portions of the McCain-Feingold campaign-finance law. The Court left in place the disclosure requirement for corporations and the disclaimer requirement that identifies whether an ad is not paid for by the campaign. But little else remains. The Court overruled the highly controversial 1990 decision in  Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates. As this report notes:

The majority, invoking the Constitution’s free-speech clause, said the government lacks a legitimate basis to restrict independent campaign expenditures by companies. . .“The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether,” Justice Anthony Kennedy wrote for the majority. Companies, which had been barred since 1947 from spending money in support or opposition to a candidate, potentially now will pump millions of dollars into campaigns. Companies, and possibly labor unions as well, will be able to use their general-treasury dollars to punish or reward lawmakers for their votes on legislation.

This is a vindication of the First Amendment and a victory for the protection of political speech, which is at the heart of our political system. It will certainly increase the amount of speech. Even the New York Times recognizes this (well, sort of):

The ruling was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said allowing corporate money to flood the political marketplace will corrupt democracy.

The 5-to-4 decision was a doctrinal earthquake but also a political and practical one. Specialists in campaign finance law said they expected the decision, which also applies to labor unions and other organizations, to reshape the way elections are conducted.

Republicans may see some tactical advantage here, as corporations wary of the Obama regime may now help fund Republican Senate and House candidates seeking to block the Obama anti-business agenda. But it would be a mistake to assume that corporations that seem to have perfected the art of feeding at the government trough and which are vulnerable to the ever-increasing reach of the Obama administration won’t cover their bets by giving to both sides. Moreover, this is a victory plain and simple for the Constitution and for the essential notion that if there is a “problem” with certain types of speech, the solution is more speech, not the heavy hand of government censors.

In a landmark 5-to-4 ruling, the Supreme Court today in Citizens United v. FEC struck down major portions of the McCain-Feingold campaign-finance law. The Court left in place the disclosure requirement for corporations and the disclaimer requirement that identifies whether an ad is not paid for by the campaign. But little else remains. The Court overruled the highly controversial 1990 decision in  Austin v. Michigan Chamber of Commerce, which upheld restrictions on corporate spending to support or oppose political candidates. As this report notes:

The majority, invoking the Constitution’s free-speech clause, said the government lacks a legitimate basis to restrict independent campaign expenditures by companies. . .“The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether,” Justice Anthony Kennedy wrote for the majority. Companies, which had been barred since 1947 from spending money in support or opposition to a candidate, potentially now will pump millions of dollars into campaigns. Companies, and possibly labor unions as well, will be able to use their general-treasury dollars to punish or reward lawmakers for their votes on legislation.

This is a vindication of the First Amendment and a victory for the protection of political speech, which is at the heart of our political system. It will certainly increase the amount of speech. Even the New York Times recognizes this (well, sort of):

The ruling was a vindication, the majority said, of the First Amendment’s most basic free speech principle — that the government has no business regulating political speech. The dissenters said allowing corporate money to flood the political marketplace will corrupt democracy.

The 5-to-4 decision was a doctrinal earthquake but also a political and practical one. Specialists in campaign finance law said they expected the decision, which also applies to labor unions and other organizations, to reshape the way elections are conducted.

Republicans may see some tactical advantage here, as corporations wary of the Obama regime may now help fund Republican Senate and House candidates seeking to block the Obama anti-business agenda. But it would be a mistake to assume that corporations that seem to have perfected the art of feeding at the government trough and which are vulnerable to the ever-increasing reach of the Obama administration won’t cover their bets by giving to both sides. Moreover, this is a victory plain and simple for the Constitution and for the essential notion that if there is a “problem” with certain types of speech, the solution is more speech, not the heavy hand of government censors.

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The Supreme Court Watch

There is good reason to believe that one or more Supreme Court justices will step down in 2010. The rumors have swirled for some time that Justice Stevens will retire. Moreover, it seems increasingly likely that the Democrats may lose Senate seats, dropping their ranks below the filibuster-proof 60. That makes post-2010 Supreme Court confirmation fights a bit trickier and reduces the chances of a hard-core liberal activist making it to the Court after the 2010 elections. So if the liberal/activist justices are thinking of retirement in the next few years, 2010 is the time to do it.

Obama made a political calculation with Sonia Sotomayor that the benefits of a “wise Latina” outweighed the long term benefits of having a top-flight liberal intellectual on the Court, who might go toe-to-toe with the conservative heavyweights (and have the ability from time to time to corral the mercurial Justice Anthony Kennedy). That calculation made some sense if one supposes Sotomayor would not be Obama’s only appointment.

In some respects the Sotomayor confirmation hearing was a boon to conservative jurists and scholars. As Ed Whelan notes, despite Obama’s attempt to elevate “empathy,” and a filibuster-proof Democratic majority, judicial activists came away disappointed “as Sotomayor, in close consultation with the White House, tried to disguise herself as a judicial conservative. ‘The task of a judge is not to make law, it is to apply the law,’ she averred. Judges are ‘like umpires,’ she said. She pretended to walk away from her support for freewheeling resort to foreign and international legal materials. And, perhaps most strikingly, she emphatically repudiated Obama’s own empathy standard.” What’s more, liberals grudgingly figured out that Jeffrey Rosen was right — they could have come up with a better nominee.

In 2010 Obama might go for a top-flight nominee with impeccable credentials and a willingness to be candid about his or her judicial philosophy. But the temptation is great, especially as Obama’s ratings are sinking and his Democratic colleagues are floundering in the polls, to once again play the political angle. Recall that with this crowd everything is political — the Afghanistan war strategy, the census, and especially the Justice Department. So the political consiglieres may well be pushing for a minority-group nominee (haven’t Asians been drifting toward the Republican camp?) or a charismatic figure around whom to rally as they seek to paint the Republicans as the grouchy, bad guys. Find someone who will be good on TV! Play the gender/ethnicity/race card! (Besides, if the Obami are confident in securing a second term, what’s the rush? They’ll have many more years to put boringly competent and intellectually precise people on the Court.)

So it may well be that once again an unexceptional but dependable liberal will get the nod.  But we can, I think, be assured of one thing: David Broder notwithstanding, Janet Napolitano will be off the short list.

There is good reason to believe that one or more Supreme Court justices will step down in 2010. The rumors have swirled for some time that Justice Stevens will retire. Moreover, it seems increasingly likely that the Democrats may lose Senate seats, dropping their ranks below the filibuster-proof 60. That makes post-2010 Supreme Court confirmation fights a bit trickier and reduces the chances of a hard-core liberal activist making it to the Court after the 2010 elections. So if the liberal/activist justices are thinking of retirement in the next few years, 2010 is the time to do it.

Obama made a political calculation with Sonia Sotomayor that the benefits of a “wise Latina” outweighed the long term benefits of having a top-flight liberal intellectual on the Court, who might go toe-to-toe with the conservative heavyweights (and have the ability from time to time to corral the mercurial Justice Anthony Kennedy). That calculation made some sense if one supposes Sotomayor would not be Obama’s only appointment.

In some respects the Sotomayor confirmation hearing was a boon to conservative jurists and scholars. As Ed Whelan notes, despite Obama’s attempt to elevate “empathy,” and a filibuster-proof Democratic majority, judicial activists came away disappointed “as Sotomayor, in close consultation with the White House, tried to disguise herself as a judicial conservative. ‘The task of a judge is not to make law, it is to apply the law,’ she averred. Judges are ‘like umpires,’ she said. She pretended to walk away from her support for freewheeling resort to foreign and international legal materials. And, perhaps most strikingly, she emphatically repudiated Obama’s own empathy standard.” What’s more, liberals grudgingly figured out that Jeffrey Rosen was right — they could have come up with a better nominee.

In 2010 Obama might go for a top-flight nominee with impeccable credentials and a willingness to be candid about his or her judicial philosophy. But the temptation is great, especially as Obama’s ratings are sinking and his Democratic colleagues are floundering in the polls, to once again play the political angle. Recall that with this crowd everything is political — the Afghanistan war strategy, the census, and especially the Justice Department. So the political consiglieres may well be pushing for a minority-group nominee (haven’t Asians been drifting toward the Republican camp?) or a charismatic figure around whom to rally as they seek to paint the Republicans as the grouchy, bad guys. Find someone who will be good on TV! Play the gender/ethnicity/race card! (Besides, if the Obami are confident in securing a second term, what’s the rush? They’ll have many more years to put boringly competent and intellectually precise people on the Court.)

So it may well be that once again an unexceptional but dependable liberal will get the nod.  But we can, I think, be assured of one thing: David Broder notwithstanding, Janet Napolitano will be off the short list.

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