Avoid Layoffs

Op Ed in Providence Journal.

Shine a light on "dark money" in politics

OpEd in the Cambridge Chronicle.

The inconsistency of Chief Justice Roberts

Op Ed in MetroWest Daily News

It is no longer on the website.

Here is what I wrote:

 

There are many qualities that excellent justices require. First is what is called the judicial temperament; that is, according to the American Bar Association, “compassion, decisiveness, open-mindedness, sensitivity, courtesy, patience, freedom from bias and commitment to equal justice.” Second must be a thorough knowledge of the law. But neither of these are much use unless the judge shows consistency; consistency in outcomes for similar cases, consistency in the logic used to reach the outcome, and also consistency in what is and what is not allowed to influence the decision.

If these characteristics are desirable in a trial judge, how much more necessary they are in a Justice of the Supreme Court of the United States. Yet Chief Justice Rogers has shown himself to be lacking in consistency with which he marshals the reasons for his decisions. We need to make a close comparison between the recently decided McCutcheon case (McCutcheon et al. versus Federal Election Commission, 2014) and an Arizona Case decided in 2011 (Arizona Free Enterprise Club’s PAC et al. versus Bennett, Secretary of State of Arizona, et al., 2011).

 In McCutcheon Roberts makes very clear that speculation of what might occur (such as the funneling of excessive funding to a candidate or party through a complex of committees) is irrelevant in deciding the issue. Only verifiable events that have actually occurred can be considered as evidence in this case. He writes:

 “And— importantly—we “have never accepted mere conjecture as adequate to carry a First Amendment burden.” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 392 (2000).“

He is saying here that one must have a strong factually based argument in order to make a decision involving the freedom of speech. In fact such joint committees already exist and Washington lobbyists like Covington & Burling are celebrating:

“we expect today’s decision will increase the political power of Members of Congress who have a strong relationship with high net worth donors. We also expect it to increase the influence of major donors.”

However, in Arizona, he took a quite different tack. The Arizona law provided public financing to candidates whose opponents exceeded a threshold amount of private funding. At first glance, this would appear to fulfill the requirement that more speech (or money in Robert’s view) in an election is better.  However, Chief Justice Roberts speculated that the existence of the threshold would create a disincentive for privately financed candidates to raise and spend as much as they could because this would trigger an additional public financing for opponents. Thus the law inhibits, according to Roberts, the free speech of the privately financed candidates. Here speculation, based on very little evidence other than affidavits from political candidates stating that they believed that if public funding were available, they would have been unable to raise funds, is admitted as a fundamental rationale for the striking down of the Arizona law.

It would nice if Chief Justice Roberts were consistent in his rejection of speculation in both these cases. Just as it would have been nice if he had upheld the doctrine of “stare decisis” which he promised to do at his confirmation hearings.

Chief Justice Roberts is inconsistent. He is unreliable. The American people deserve better of the Chief Justice of the United States.

The Evils of Pay Secrecy

OpEd in MetroWest Daily News