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.
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