High court shows it might be willing to act boldly

By Robert Barnes
Washington Post Staff Writer
Friday, January 22, 2010; A04

The Roberts court ended its term last summer avoiding a constitutional showdown with Congress over the Voting Rights Act. But its first major decision of the current term might signal a new willingness to act boldly.

Chief Justice John G. Roberts Jr. and his conservative colleagues delivered a seismic jolt Thursday. They overturned two of the court's past decisions -- including one made as recently as six years ago -- to upend federal legislation that says corporations may not use their profits to support or oppose candidates and to declare unconstitutional a large portion of the McCain-Feingold campaign finance reform act passed in 2002.

"This is obviously such an exceptionally dramatic, high-profile break with precedent," said Pamela Harris, executive director of the Supreme Court Institute at Georgetown Law Center. "The question is, what will come next? Perhaps they have exhausted themselves on this one case, or it could have the opposite effect and be energizing. I really don't know which it will be."

The court's future (Roberts and Justice Samuel A. Alito Jr. were key to the decision) and its past (89-year-old John Paul Stevens led his liberal colleagues in dissent) were on vivid display at the court's special session to deliver all 176 pages of Citizens United v. Federal Elections Commission.

Although the majority's ode to the First Amendment was announced by Justice Anthony M. Kennedy, it would not have been possible without Roberts and Alito, President George W. Bush's nominees to the court.

Roberts has shown himself more willing than his mentor and predecessor, William H. Rehnquist, to question the court's past decisions. Alito's replacement of Justice Sandra Day O'Connor has tipped the court's balance from supportive of congressional efforts to reduce the influence of special interests to suspicious of how the restrictions curtail free speech.

The dissent was read hesitantly by Stevens, the court's longest-serving justice. Thought by many to be ready to leave the bench after this term, Stevens stumbled uncharacteristically in more than 20 minutes of denouncing the majority opinion.

His 90-page dissent, however, was razor-sharp.

'Glittering generality'

He said the majority's "glittering generality" that corporate speech, like individual speech, is protected under the First Amendment was a "conceit" that is "not only inaccurate but also inadequate to justify the court's disposition of this case."

He wrote of his conservative colleagues' "agenda" and said they had transformed a simple case about whether a conservative group's movie about Hillary Rodham Clinton violated McCain-Feingold into a constitutional quandary. "Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law."

Roberts and Alito joined Kennedy and Justices Antonin Scalia and Clarence Thomas, the three court veterans who had signaled their disagreement with the corporate limits.

Roberts and Alito wrote separately to endorse the majority decision and to rebut charges that it was ignoring the respect for the court's past decisions -- known as stare decisis -- that each had pledged to uphold during their confirmation hearings.

"We have had two rounds of briefing in this case, two oral arguments, and 54 amicus briefs to help us carry out our obligation to decide the necessary constitutional questions according to law," Roberts wrote. "This careful consideration convinces me that Congress violates the First Amendment when it decrees that some speakers may not engage in political speech at election time, when it matters most."

But Roberts bristled at Stevens's charge that the majority's opinion showed it was not "serious about judicial restraint."

"This approach is based on a false premise: that our practice of avoiding unnecessary (and unnecessarily broad) constitutional holdings somehow trumps our obligation faithfully to interpret the law," Roberts wrote. "It should go without saying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right."

Roberts seemed to be speaking to liberals when he wrote that stare decisis cannot be seen as an "inexorable command."

"If it were, segregation would be legal, minimum wage laws would be unconstitutional and the government could wiretap ordinary criminal suspects without first obtaining warrants," he said, referring to previous court decisions.

'Legislative grace'

Perhaps with the nation's editorial writers in mind, Roberts also pointed out that an exception in the McCain-Feingold law for media companies was "simply a matter of legislative grace."

Roberts warned: "The fact that the law currently grants a favored position to media corporations is no reason to overlook the danger inherent in accepting a theory that would allow government restrictions on their political speech."

The battle over restricting corporate and union spending in political campaigns does not necessarily break down along ideological lines: The American Civil Liberties Union and the National Rifle Association supported Citizens United.

But the reaction to the court's decision followed mostly partisan lines. And the court's familiar ideological split may have reinforced, warranted or not, the image the court finds most distasteful -- that its decisions are political as well.

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