E.J. Dionne is outraged by the work this term of the Supreme Court’s new additions, Chief Justice Roberts and Justice Alito. It’s predictable enough that the liberal Dionne would end up unhappy with the non-liberal Roberts and Alito, but Dionne’s attack is largely incoherent.
Dionne is most upset by the decision striking down the McCain-Feingold law to the extent that it banned several ads by a right-to-life organization, aired fewer than 30 days before an elecion, that called on viewers to urge their Senators (Feingold and Kohl) to oppose the filibuster of judicial nominees. The ads didn’t mention any election, much less urge viewers to vote for or against a candidate. Indeed, the ads made no comment on any candidate’s character, qualifications, or fitness for office, nor did they inform viewers whether Feingold and Kohl were participating in the filibuster. Instead, they focused solely on a legislative issue, took a position on the issue, and urged the public to contact public officials with respect to the matter.
Dionne doesn’t bother to explain why he thinks it’s consistent with the First Amendment to prohibit organizations from urging folks to petition their elected representatives on an issue 30 days before an election (Feingold was running unopposed in a primary). Instead, he crticizes Roberts and Alito for not being willing to admit they were overturning existing precedent. But Dionne doesn’t show that Roberts and Alito were doing that. The best he can do is to cite a comment by Justice Scalia in which he too criticizes Roberts and Alito. But Scalia’s unhappiness with Roberts and Alito refutes, rather than supports, Dionne’s attack. If Roberts and Alito were upsetting precedent, then Scalia, who wanted this particular precedent upset, would not have expressed displeasure.
But Dionne doesn’t do legal analysis, he does outrage. The purpose of his column is not to offer honest analysis of Supreme Court decisions or the jurisprudence of particular judges. The purpose is to rally Democrats around this slogan: “Not One More Roberts or Alito,” which is the title of his column.
The answer from Republicans should be, not one more Stevens, Souter, Ginsburg, or Breyer.
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