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Commentary: The assault on “faux judicial restraint”


Now and then, a footnote in a Supreme Court opinion is so provocative, so perceptive, or both, that it speaks almost as loudly as the body of the opinions themselves. In the election campaign ads ruling on Monday, Justice Antonin Scalia unleashes this broadside at the main opinion, written by Chief Justice John G. Roberts, Jr.:

“[T]he principal opinion’s attempt at distinguishing McConnell [v. FEC] is unpersuasive enough, and the change in the law it works is substantial enough, that seven Justices of the Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so. This faux judicial restraint is judicial obfuscation.”

Aside from the substance of the remark, it is especially noteworthy because it is a direct assault on the version of judicial modesty that seems to be — at least at this early stage of the “Roberts Court” — the decision-making style that the new Chief Justice has so often advocated publicly. (Perhaps also to be left aside is that Justice Scalia himself joined earlier in the Term in a ruling by the Court, in the partial-birth abortion decision — Gonzales v. Carhart — that can be read as having overruled precedent without saying so.)

The Chief Justice’s opinion in the combined cases of FEC v. Wisconsin Right to Life (06-969) and McCain v. Wisconsin Right to Life (06-970) is the latest example of the Court’s moving away from major precedent without actually saying explicitly that the prior ruling was being set aside. The Chief Justice has talked with some fervor about the value of respecting precedent, and the need to keep overrulings to a minimum, if not truly rare. But the new conservative majority on the Court is plainly uncomfortable with some of the precedents it confronts — and the McConnell decision was a prime candidate for overruling. In fact, both sides in the case had been granted additional space in briefing to argue whether it should be cast aside.

In the end, all that the Chief Justice’s opinion would say on the point was that “we have no occasion to revisit” the McConnell decision as it applied to federal regulation of broadcast ads aired by corporations and labor unions in election season. But what remains of that aspect of the 2003 decision divided the Court deeply in the various writings on Monday. And the end result is that, if it is hanging on, it is just by a thread.

In fact, the numbers show how vulnerable it is: three Justices wanted to overrule it outright, Justice Samuel A. Alito, Jr., is revealed to be strongly tempted to do that when and if the issue comes back again, and the Chief Justice’s tolerance of it as a precedent is fleeting at most. The only thing that might keep that part of McConnell on the books, technically not overruled, is that the Chief Justice’s new opinion could make it entirely unnecessary to do so — the campaign ads will flow freely in the weeks closest to elections, with full First Amendment protection, unless they leave no doubt that what they really say is “vote for Jones” or “vote against Smith.” Those who draft campaign ads’ content will have no trouble avoiding such blatant advocacy and yet leaving no one in doubt which outcome is preferred by the ads’ sponsors.

The Chief Justice’s opinion has these central parts:
A. The First Amendment protects a campaign ad on radio, TV, cable or satellite outlets by a corporation and labor union using its own treasury funds, unless no reasonable person, seeing or hearing that ad, would interpret it “as an appeal to vote for or against a specific candidate.”
B. The intent of the ad’s sponsor is not to be considered, no matter what other activities the sponsor may have carried out that revealed its true preferences. The focus of any inquiry into an ad’s legality under the new standard is just what the ad says — its actual words and pictures — without regard to any outside indications of what was intended.
C. The ad can be run as close to election time — primary or general election — as the sponsor wishes.
D. Any public policy issue it discusses, while naming a person who happens to be a candidate that season, need not be a live issue in public debate at the moment.
E. If a given ad is challenged in court as being over the specified line, a court may allow only minimal inquiry — if any at all — into the nature of the ad and whether it does cross the line. If there is any dispute about that, the ad and its sponsor “must be given the benefit of the doubt.”

However permissive that formulation may be in actual practice, it is clear that it is considerably more tolerant than almost anyone contemplated at the time the McConnell decision came down. In fact, a respected U.S. District Court, after McConnell, had interpreted that decision to mean that election season ads had simply been banned, if paid for by corporations and labor unions out of their own treasuries, and there was no way they could be challenged a case at a time.

Last Term, the “Roberts Court” said that was a misreading of McConnell, and set the stage for the as-applied challenge that resulted, on Monday, is what appears to be more in reality than an as-applied ruling.