(1) James Fallows is a very well-regarded writer and thinker. He also has an unconventional understanding of the purpose of the questions judges ask during oral arguments.

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?

This is interesting. One could question Fallows’s substantive criticism of what he takes to be Roberts’s view. Yet I have no reason to believe that Roberts’s question actually reflects Roberts’s own views on the matter at hand. Must every question reflect a settled view, or are the questions meant to probe the reasoning of the parties involved? My understanding is that some questions are meant to be provocations. I use this method with students, and I’m partial to it.

But yes, another theory is that John Roberts is an imbecile. Though I’m more of an Alito fan, my sense is that Roberts is in fact pretty bright, and that he has broad familiarity with the kind of questions he needs to ask to do his job properly.

(2) Justin Fox is one of the country’s most celebrated economics journalists. Yet this post seems to reflect a basic confusion.

Legal opinions are supposed to be consistent with precedent and the law. In this case, though, the Supreme Court was dealing with three different and conflicting strands of law and precedent: (1) the many laws and past court rulings restricting corporate political involvement, (2) the precedent that political spending is equivalent to First-Amendment-protected speech, (3) laws and precedent that establish corporations as persons. The Court majority chose to jettison (1) and stick with (2) and (3). I’m in no position to say the justices were wrong as matter of law. But as a matter of policy and common sense, it’s clearly (3) that’s most problematic. If corporations are persons, they are — if they behave as Milton Friedman wanted them to — persons with mental and emotional impairments so severe that any decent judge would feel entirely justified in declaring them incompetent.

Glenn Greenwald does an excellent job of clearing up this confusion.

I want to note one extremely bizarre aspect to the discussion yesterday. Most commenters (though not all) grounded their opposition to the Supreme Court’s ruling in two rather absolute principles: (1) corporations are not ”persons” and thus have no First Amendment/free speech rights and/or (2) money is not speech, and therefore restrictions on how money is spent cannot violate the First Amendment’s free speech clause. What makes those arguments so bizarre is that none of the 9 Justices — including the 4 dissenting Justices — argued either of those propositions or believe them. To the contrary, all 9 Justices — including the 4 in dissent — agreed that corporations do have First Amendment rights and that restricting how money can be spent in pursuit of political advocacy does trigger First Amendment protections.

Of course, it could be that all 9 Justices are deranged or lacking in common sense for believing that First Amendment protections are at stake when we’re talking about corporations. But Ilya Somin offers another straightforward way of looking at the issue.

It’s true, of course, that corporations “are not human beings.” But their owners (the stockholders) and employees are. Human beings organized as corporations shouldn’t have fewer constitutional rights than those organized as sole proprietors, partnerships, and so on. In this context, it’s important to emphasize that most media organizations and political activist groups also use the corporate form. As Eugene points out, most liberals accept the idea that organizational form is irrelevant when it comes to media corporations, which were exempt from the restrictions on other corporate speech struck down by the Court today. The Supreme Court (including its most liberal justices) has repeatedly recognized that media corporations have First Amendment rights just as broad as those extended to media owned by individuals. Yet the “corporations aren’t people” argument applies just as readily to media corporations as to others. After all, newspapers, radio stations, and TV stations “are not human beings” and they too “have no consciences, no beliefs, no feelings, no thoughts, no desires.” We readily reject this reasoning in the case of media corporations because we recognize that even though the corporations in question are not people, their owners and employees are. The same point applies to other corporations.

Is the fact that media corporations are exempt a privilege granted by the sovereign, or is it a right protected by the First Amendment? And if it is indeed a right, is it not rooted in the fact that a media corporation is a group of rights-bearing individuals organized in a larger body?

As for Uncle Milton’s take on the social role of the corporation, my sense is that it’s not the kind of thing that can or should be enforced by statute, but rather should reflect the choices made by the human beings organized as the corporation. Like Fox, I strongly believe that corporate governance has taken a wrong turn. The people who make up a corporation matter.

(3) I’ve often heard that “money doesn’t equal speech.” And of course that’s true! But as Eugene Volokh has noted, they’re not entirely unrelated.

But, as I wrote a few years ago, money isn’t abortion, either. Nonetheless, a law that banned the spending of money on abortion would surely be a serious restriction on abortion rights (whether or not you think that the Court was right to recognize such rights). A law that capped the spending of money for abortions at a small amount, far smaller than abortions often cost, would likewise be a burden on abortion rights, and dismissing this argument as “it is quite wrong to equate money and abortion” would be unsound.

Perhaps anti-abortion conservatives and advocates of campaign finance regulation can reach a compromise! Wait, I think that’s pretty unlikely.

(4) I intend to write very soon about the next wave of campaign finance reforms, focused on matching grants and other efforts to empower less-affluent citizens that don’t rely on restricting political speech.