Bench Memos

NRO’s home for judicial news and analysis.

Feeney v. Breyer


That’s a good critique of Justice Stephen Breyer’s Active Liberty by Rep. Tom Feeney on NRO today. I was a little jarred by one thing, however. At one point, ably taking down Breyer’s pretensions to democratic credentials for his judicial activism, the congressman writes: “Policies dictated from the bench that nullify decisions made by representatives (statutes enacted or proposals rejected) elected in regular elections are, ipso facto, not democratic.” Right. So why, two paragraphs later, is the congressman critical of Breyer’s having been part of the majority in the 2003 ruling in McConnell v. FEC? Rep. Feeney writes that Breyer et al. “limited the First Amendment’s protection of campaign speech.” Maybe so, maybe not. Maybe Breyer had bad reasons for upholding McCain-Feingold (I’m trying to remember the last time Justice Breyer gave a good reason–for anything). But maybe the First Amendment contains no judicially applicable principles that can be brought to bear on campaign-finance-policy questions, and the justices were right to leave this mess to Congress. One thing’s certain: in McConnell the majority refused to “dictate from the bench” a policy that “nullified decisions made by representatives.” Is there a disconnect here?


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