It's Not Crazy To Say That Corporate Ads Count As Associational Speech

James Fallows is not happy about the difference between John Roberts's testimony in his confirmation hearing, in which he said we should be deferential to precedent, and his questioning during oral argument of Citizens United:

And even if Kagan were wrong -- and, she is right -- is it not breathtaking for one appointed Justice, on his own, to decide that he does not like the balance that elected legislators decided on many decades ago, and that many waves of his judicial predecessors have declined to tamper with?

On the merits, Roberts' approach is like the idiot-savant faith in flawless markets that we all recall from Introductory Ec class. The cliched joke about this outlook concerns the economist's refusal to pick up a $20 bill sitting on the sidewalk: After all, if really were a $20 bill, someone would already have picked it up. But the merits of his argument aren't the point. It's the disjuncture between the person who presented himself with "humility" at the confirmation hearings and the man happy to legislate from the bench.

The head of the nation's judicial branch was purposefully deceptive during his "umpire" testimony. Or he had no idea what his words meant. Or he has had a complete change of philosophy and temperament while in his mid-50s. Those are the logical possibilities. None of them is too encouraging about the basic soundness of our governing institutions.

I find this reaction a little odd.  First of all, at least as I've always understood it, during oral argument the judges often ask extreme questions, because they're probing for weaknesses in the case.  That doesn't mean they're endorsing the extreme, any more than employing the infamous trolley problem to explore our intuitions about making tradeoffs that cost human lives, means I think we should stop runaway street cars by throwing people in front of them.

Second of all, surely no one could have expected that John Roberts was going to endorse every single precedent ever decided by the Supreme Court.  In fact, questions about "deference to precedent" are, again at least as I understand it, code for "are you going to overturn Roe v. Wade", not a request for an actual pledge to endorse any and all things the Supreme Court has ever said in its history.  

The description in the first paragraph could just as easily describe sodomy law before Lawrence v. Texas, civil rights law pre-Brown, or indeed, the state of abortion law pre-Roe.  Had Roberts voted for the majority in one of these cases, would we be hearing the same anguish about his lack of deference to precedent?

And respectfully, one does not need to be an idiot savant from Introductory Ec class to think that "Congress shall make no law . . . abridging the freedom of speech" means that, well, Congress shouldn't make any law abridging the freedom of speech, even if that speech is done by corporations.  Nor is it crazy to think that as long as people have the right of exit, their decision not to exit legitimates the ability of organizations to speak for them.

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Megan McArdle is a columnist at Bloomberg View and a former senior editor at The Atlantic. Her new book is The Up Side of Down.

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