In his weekly address today, President Obama addressed the Supreme Court's decision in Citizens United v. FEC.

You can read his address here.  And you can sign People For's petition to pass a Constitutional Amendment allowing Congress to regulate corporate influence in elections.

The New Preamble:

We the corporations of the United States, in order to accumulate historically unparalleled wealth, take advantage of limited liability, control the nation's news media, exercise monopolistic and oligarchic control over trade, and secure the blessings of power to ourselves and our subsidiaries, do ordain and establish this Constitution for the United States of America.

Personally, I kind of liked the old "We the People" idea, back when we thought the Constitution existed to protect people's liberty. Guess I'm an old-fashioned kind of guy. It'll take a constitutional amendment to get our Constitution back.

As discussed in a number of previous posts, the Roberts Court has demonstrated its conservative ideological bent, striking down laws passed by Congress and demonstrating a willingness to ignore long-standing precedent. It reached out last term in the Gross age discrimination case to decide an issue that hadn't been briefed and changed the law in a way that will make it much harder for older workers to prove that they were discriminated against in the workplace. In the Ricci fire fighters case, the Court reached out to decide the case on the merits - even though no employee had actually been injured -- so that it could reach the merits and change the law with respect to proving discrimination in so-called disparate impact cases. And, in the recently argued Citizens United case, the Court re-opened the briefing in the case to re-visit what had been a settled question about whether regulating corporate expenditures in candidate elections is constitutional.

Will this trend continue? And what does this mean for President Obama's initiatives on health insurance reform? Climate change? Financial regulatory reform? Asnoted in Adam Liptak's article in yesterday's New York Times, the Court's docket this term includes a number of cases likely to signal its future willingness to support government intervention to address structural problems in our economy. In Free Enterprise Fund v. Public Company Accounting Oversight Board, a case growing out of the Enron debacle, the Court will consider the scope of Congress' power to delegate regulatory responsibility to independent regulatory boards. The issue in Jones v. Harris Associates, concerns the role of courts in regulating executive compensation for mutual fund investment advisers. And in Milavetz, Gallop & Milavetz v. United States, the issue concerns the scope of a federal law concerning lawyers' advice to clients considering bankruptcy. Dry? Perhaps. But what we learn in these cases, may well signal how far the Court is willing to go in supporting or, perhaps more likely, frustrating, efforts by the Administration and Congress to address serious structural problems in our economy.

You think Justices' legal ideology matters? Stay tuned.

Jeffrey Rosen’s op ed piece in the New York Times over the weekend, The Trial of John Roberts, echoes a theme noted by a number of commentators, one on which I posted last week: that the Supreme Court’s decision to open up long-settled law with respect to regulating corporate expenditures in candidate elections in the recently argued Citizens United case is a quintessential exercise in judicial activism. And it’s the kind of judicial activism that then nominee John Roberts pretended to foreswear through his claims to be an umpire, simply calling balls and strikes.  

Where I part company from Rosen, however, is in his analysis that Chief Justice Roberts “deserves credit for trying” to forge a broader consensus on narrower grounds, citing, in particular, last term’s Voting Rights Act case.  The cynic in me says that the decision was 8-1 to uphold Section 5 of the Voting Rights Act and not 5-4 to overturn it, because the Chief Justice simply did not yet have the votes to do so. And Rosen’s reliance on greater unanimity on the Court with respect to upholding business interests – according to the Chamber 79% of these cases decided on margins of 7-2 better – is not, in my view, a reflection of Chief Justice Roberts’ forging consensus on narrow grounds. It’s a reflection of how conservative this Court really is, why the judicial philosophy of the next nominee to the Supreme Court really matters, and why it’s important to begin having that discussion now.

The Supreme Court is about to hear argument in a case, Citizens United v. Federal Election Commission, that should put an end to the myth advanced by Chief Justice Roberts at his confirmation hearing that he, as a Justice, is simply serving as an umpire, calling balls and strikes about what the law provides without any intention of influencing the direction of the law.  

After hearing oral argument last term, the Court postponed a decision in Citizens United, which involves the FEC’s attempt to treat an anti-Hillary Clinton movie as an impermissible “electioneering communication,” and ordered the parties to submit briefs that address the question of whether regulating corporate expenditures in candidate elections is constitutional. So instead of deciding the case in front of them, those who had been on the losing side in the past have reached out to redecide an issue that had been settled. 

Regardless of where you are on the merits of regulating express candidate advocacy by corporations – the issues of campaign finance regulation and the question currently being addressed by the Court are extraordinarily complex and weighty – it seems likely that those formerly in the minority, including Justice Roberts, seeing a change in the make-up of the Court (with Justice Alito replacing Justice O'Connor, who originally helped decide the quesiton), have seized a potential opportunity to re-make the law.  

So let’s be clear. Chief Justice Roberts isn't just calling balls and strikes: he's actually determining which pitches get thrown. 

Judges bring their own legal ideology to the table when they decide cases. It makes a difference whether the next nominee to the Supreme Court understands that the law and the Constitution mandate protections for average Americans against the interests of the more powerful. It makes a difference whether the next nominee to the Supreme Court understands that the law and the Constitution protect important privacy rights. It makes a difference that the next nominee appreciates that the law and the Constitution affect the realities of Americans’ everyday lives. It’s not just balls and strikes. Judicial philosophy matters.