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Killing it Dead

January 25, 2010
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On the striking down of McCain-Feingold, Greenwald states the obvious fact, making the likes of Keith Olbermann look ridiculous:

Critics emphasize that the Court’s ruling will produce very bad outcomes:  primarily that it will severely exacerbate the problem of corporate influence in our democracy.  Even if this is true, it’s not really relevant.  Either the First Amendment allows these speech restrictions or it doesn’t.  In general, a law that violates the Constitution can’t be upheld because the law produces good outcomes (or because its invalidation would produce bad outcomes).

You.  Don’t.  Say.  We’d all be a lot better off if guys like John Rocker weren’t allowed to speak publicly, but that doesn’t mean we get to legally shut him up.  Plus, as Greenwald notes, how could the problem of campaign finance lobbying possibly get any worse?

Much more looming of a problem, however, is the activism of what’s supposed to be an conservative court.  Believe me, I think McCain-Feingold has always been unconstitutional, but that’s a very active decision from the Supreme Court based on remarkably flimsy precedents, as Paul Campos notes:

Three aspects of the decision are particularly noteworthy. First, Chief Justice John Roberts, who was praised to the skies at the time of his confirmation hearings for his supposedly “minimalist” approach to judging, goes out of his way to demolish several decades worth of congressional work to do something about the corrupting influence of money on politics.

He does so by taking two totally unnecessary steps. For one thing, the law at issue could easily have been interpreted to simply not apply to the facts of this case. (The case involves the distribution of a feature-length film via video on demand, which quite arguably is not an “electioneering communication” covered by the federal statute the court struck down). It’s a well-established rule of statutory interpretation that when a court is faced with two plausible readings of a federal statute, one of which would require something as drastic as finding the statute unconstitutional, and the other which avoids that outcome, the justices ought to prefer the latter. Indeed, that rule is a central tenet of anything that deserves to be called “minimalist” judging.

Yeah, that’s what they did with the Ricci case, which was an upending of a ruling approved by none other than Sonia Sotomayor that involved racial disparate-impact employment issues.  A lot of liberals tend to cry foul when conservatives stamp their feet about judicial activism as a means of complaining about rulings that they don’t like.  In this case, I can’t help thinking that they’re right.  I hate talking about double standards more than anyone, but this one looks pretty obvious from where I sit.

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