September 13, 2009

THE QUESTION IS NOT WHETHER THEY'LL ATTACK THEIR OWN PRECEDENTS TOO STRONGLY...:

The Trial of John Roberts (JEFFREY ROSEN, 9/13/09, NY Times)

For decades conservatives have attacked Warren, who was chief justice from 1953 to 1969, as the face of liberal judicial activism. They have criticized him for presiding over a court that imposed a contested vision of social justice on an unwilling nation — overturning decades of precedents and scores of federal and state laws in the process.

Moreover, conservatives view Warren as a Machiavellian former politician (he had been governor of California) who used incremental strategies to pursue radical ends — handing down a series of cautious decisions that favored the police, for example, and then tying their hands by requiring officers to read suspects their rights in the 5-to-4 Miranda decision of 1966.

Likewise, if the Roberts court issues a sweeping 5-to-4 decision in the current case, Citizens United v. the Federal Election Commission, striking down longstanding bans on corporate campaign expenditures, it would define John Roberts as indelibly as Miranda defined Earl Warren. And there is no reason for the court to do so: it would be easy for the justices to rule narrowly in the Citizens United case, holding that the corporate-financed political material in question — a documentary called “Hillary: the Movie” — isn’t the kind of campaign ad that federal law was intended to regulate.

But 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.


...but whether they'll uproot them thoroughly enough. The ruling, to be consistent with the Constitution, would need to dispose of the judicially imposed doctrine of corporate personhood and restore the original standard that legislatures get to define corporate rights just as they do corporate responsibilities, corporations being convenient legal fictions created by those legislatures.

Posted by Orrin Judd at September 13, 2009 7:34 AM
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