ROBERTS RULES

David Souter, leading the four-Justice minority in yesterday's
campaign-finance
case, lamented that the Supreme Court had overturned its earlier
ruling in favor
of the 2002 McCain-Feingold campaign-finance reform. If only that were true.

The Supreme Court punched a hole in McCain-Feingold yesterday, but it
missed a chance to revisit its misguided 2003 decision upholding
McCain-Feingold's overall restrictions on political speech.

Justice Antonin Scalia summed up the matter succinctly in calling
Chief Justice John Roberts's opinion for the majority "judicial
obfuscation" in the name of "faux judicial restraint."

Whether fake or not, the High Court also tread lightly in two other
First Amendment decisions yesterday.

In Hein v. Freedom From Religion Foundation, the Court rejected, by a
5-4 vote, a suit against the President's Office of Faith-Based
Initiatives. But it declined to overturn an earlier decision on
taxpayer standing, as urged by some of the Justices. And in Morse v.
Frederick, the Court upheld a school district's right to restrict
speech that seemed to advocate the use of illegal drugs, and so
upheld, by a 6-3 vote, earlier decisions that granted schools latitude
in controlling student speech. All three cases stayed true to the
Roberts Court's inclination toward incrementalism.

By far the most important case was Federal Election Commission v.
Wisconsin Right to Life, which goes back to the summer of 2004.
Wisconsin Right to Life had generated TV and radio ads about judicial
filibusters, but because the ads mentioned Senator Russ Feingold by
name, it sought a legal ruling to protect itself from criminal
liability under McCain-Feingold if it ran the ads. Yesterday, nearly
three years, two trips to the Supreme Court and two elections later,
it got its wish.

Chief Justice Roberts wrote the 5-4 opinion for the majority, but his
desire to avoid overturning the 2003 decision in McConnell v. FEC was
not shared by Justices Scalia, Anthony Kennedy and Clarence Thomas --
and perhaps not even by Samuel Alito. In other words, the Chief
Justice came close to representing a majority of one. The good news is
that all five all agreed that Wisconsin Right to Life's ads were
protected under the First Amendment and would not have fallen afoul of
McCain-Feingold's restrictions on "electioneering" within 30 days of a
primary or 60 days of a general election. But the Chief Justice
attempted to save the 2003 McConnell decision by creating a "test" by
which similar ads could be judged in the future.

His test sounds strict enough -- "issue" ads will violate
McCain-Feingold "only if the ad is susceptible of no reasonable
interpretation other than as an appeal to vote for or against a
specific candidate." Even this test, however, requires someone --
judges? federal bureaucrats? -- to sit down, watch an ad, and decide
whether there is some other reasonable interpretation of the ad. It is
either too onerous, with nearly every issue ad requiring vetting for
the range of reasonable interpretations they admit, or toothless, in
which case it's hard to see why McConnell and the relevant portions of
McCain-Feingold should be upheld at all. The four liberal dissenters
argued for the latter interpretation, since they favor restricting
political speech.

But the most likely outcome is a flurry of lawsuits during next year's
election cycle in which advocacy groups on the left or right test the
new Roberts rules.

The result is almost certain to be that some portion of ads that might
have run will not, while others will. Either way, the legal challenges
will run well past the 2008 elections. Wisconsin Right to Life has now
"won" the right to run its ads, but far too late for it to do any good
on that particular issue, and it must still be left wondering whether
its next set of issue ads will enjoy the safe harbor belatedly granted
to the last batch.

Chief Justice Roberts's opinion ends with the grace note that, under
the First Amendment, the Supreme Court "give[s] the benefit of the
doubt to speech, not censorship." He adds, "The First Amendment's
command that 'Congress shall make no law . . . abridging the freedom
of speech' demands at least that." We'd put the emphasis on "at
least." It says something about the contortions into which our First
Amendment law has been twisted that the Chief Justice can cite without
apparent irony the words "make no law" while in the same breath
upholding a sweeping restriction on political speech, the core area of
speech that the First Amendment was intended to protect.

Perhaps the Chief Justice wants to demonstrate his respect for
precedents, even bad ones. But the price of his difference-splitting
will be more years of legal and electoral confusion on what ought to
be a matter of bright-line Constitutional right.