"Wes" wrote in message
...
rangerssuck wrote:

While you're reading it, make sure that you remember that it's a
damned lucky thing that we don't have a supreme court full of activist
judges who legislate from the bench ;-)


Jeez, 183 pages. That wrecked my entire afternoon and half of the evening.
g

Ranger is right, this is a highly activist decision. The giveaway is that
Citizens United explicitly stated in their defense that they were not making
a facial challenge, but Kennedy (I'll bet it really was Scalia) decided the
Court would decide a facial challenge on Constitutional grounds anyway. His
argument for doing so is as transparently casuistic as the Court gets, and
Stevens in the dissent properly calls him on it, with appropriate sarcasm.
g

As for the decision itself, it's a case of cherry-picking precedent to
support a decision that was obviously made before the case was heard. It's
highly ideological. Several legal commentators have said that the Court
ignored some important points in the precedential cases; I'll have to let
that one go, because I'm not familiar with the key cases cited and I'm sure
not going to read them now. But the comments make it clear that the Court
was looking for bits and pieces that it favored before the fact.

Both Kennedy and Scalia like to make grand gestures, and their landmark
cases share another characteristic: When they're overturning precedent, they
go at it with the hammers of hell. Kennedy shot from all 360 degrees of the
circle, as Scalia had in the Heller case, and he has, like Scalia did, come
up with some questionable logic as a result. For example, Kennedy's
objection to limits on corporate political speech, aside from the legalisms,
is that there is little evidence that it does any good. Yet he uses the
contrary argument to dispute the Austin ruling, that "experience has
undermined" it. In fact, there has been no such experience any stronger than
that in favor of limits, nor did Kennedy cite any.

It used to be rare for a Court to try that approach because the Justices
realized they could only support an argument from a limited number of
positions. In this case, Kennedy stepped on several procedural problems that
Stevens identifies in the dissent.

The bottom line is that this was an ideology-driven decision, unnecessarily
broad in its scope, which is going to invite attacks from future courts. The
Court tried to sew it up so Congress would have no targets to shoot at; they
may have succeeded. That doesn't mean the Court was right, only that they've
already pre-decided several things that Congress might use as angles in on
the central issue.

It's pretty rare that the dissent is almost as long as the majority
decision, and even rarer that it's a better argument. But that's the case
this time. Stevens' dissent was better argued than Kennedy's argument for
the majority.

John McCain summed it up well today. Borrowing from LBJ, he said he
respected the Court's decision, but he'd feel better about it if at least
one of them had run at some time in their lives for County Sheriff.



You mean like the ones that overturned Plessy v. Ferguson?

No comparison. If you want to know why, we can take it up at another time,
but the essence is that a key point relied upon in Citizens United -- that
they claim there is no evidence of quid pro quo voting by members of
Congress -- is exactly the opposite of the same ruling point in Plessy,
which documented the fact that separate was not equal, in that it virtually
always resulted in different inputs and outcomes. So the Plessy rule failed
to meed the requirement of the 14th Amendment on the basis of evidence
alone.

Plessy was a bad ruling NOT because it violated the Constitution, but
because it made an incorrect and speculative judgment that turned out to be
wrong. Brown v. Board of Education was decided after decades of such
evidence had accrued.

--
Ed Huntress