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John Roberts and Earl Warren


Jeffrey Rosen argues that Chief Justice John Roberts should not issue a “sweeping” decision in the current campaign-finance case “striking down longstanding bans on corporate campaign expenditures.” Writes Rosen:

[I]t 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.

I have never looked closely at this area of law, so readers may be able to correct me, but it seems to me as though Rosen is leaving out a lot of middle ground. Couldn’t the Court leave the ban on corporate contributions to politicians alone, thus respecting the 1907 precedent, while overturning the more recent decisions allowing bans on corporations’ “independent expenditures”?

The bulk of Rosen’s argument is that a sweeping ruling would be wrong because it would take a position on intensely controversial questions that divide the public. It would replicate the characteristic mistake of the Warren Court. I think that Rosen’s argument has to be rejected as inimical to the rule of law. If a decision based on a proper reading of the law inflames public controversy or undermines popular approval of the Court, the justices nonetheless have a duty to make it.


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