June 28, 2006 2:27PM

Alito vs. Roberts

I’m wading into the decisions this week somewhat belatedly, as I have spent the last two days, like many homeowners in the D.C. metro area, salvaging my flooded basement. 

John notes below some of the bad news leaking between the lines of Justice Breyer’s opinion in Randall v. Sorrell: namely, Justice Breyer’s paean to the precedential status of Buckley v. Valeo, the fount of the modern First Amendment framework governing campaign finance regulation.

I’d make two addendums to John’s comments: First, I’m less concerned than he is about Justice Alito’s vote in the case. It’s true that Alito, like the Chief Justice and unlike Justices Kennedy, Thomas, and Scalia, joined the bulk of the Breyer opinion, including the application of Buckley to contribution limits. John’s reading–that Alito is a foe of the First Amendment in the realm of campaign finance–may well prove to be right. But not necessarily. Note that Alito refuses to join the portions of Breyer’s opinion that specifically reaffirm Buckley as a matter of stare decisis, based on the fact that the parties didn’t brief Buckley’s continued validity in any serious, meaningful way. (See page 2 of Alito’s concurrence in the Court’s attached slip opinion: “[O]nly once in 99 pages of briefing from respondents do the words ‘stare decisis’ appear .… Such an incomplete presentation is reason enough to refuse respondents’ invitation to reexamine Buckley.”). That caveat gives him more than enough room to join Kennedy, Thomas, and Scalia in a later case, where the validity of Buckley–applied to either expenditures or contributions–is squarely presented on the briefs. Indeed, Alito’s concurrence is an invitation to lawyers to attack Buckley in a future case. He’s saying, “When you’re ready to argue, I’m ready to listen.” This is a rather cautious approach to judging, but one that is perfectly compatible with overruling Buckley in toto in a later case.

Roberts, on the other hand, is a different matter. He joins the portions of Breyer’s opinion that state Buckley is good law as a matter of stare decisis–the only other justice in the majority to do so–committing himself, it seems, to the kind of case‐​by‐​case “narrow tailoring” scrutiny of state contribution limits that Breyer envisions. This is more tea leaf evidence of Roberts’ minimalist approach to judging. While Breyer favors this approach based on his belief that the First Amendment should be used to further the “active liberty” of democratic participation in government, my guess is that Roberts is committed to the same framework based on a simple commitment to the values of precedent, fueled by his belief that courts should do as little as possible to displace democratic debate in a “complex” regulatory arena. (The irony, of course, is that the complexity of campaign finance law is a creation of the diffident, muddled approach to First Amendment restraints on regulation of campaign expenditures and contributions pioneered by Buckley). 

The contrast suggests what may turn out to be a subtle but very important difference between Alito and Roberts. Alito and Roberts have a cautious, conservative with a small “c” streak. But Alito, I’m guessing, is cautious as a pragmatic, belt‐​and‐​suspenders matter, because he wants to make sure that the Court’s big decisions have the benefit of the most considered legal arguments available in their favor. Thus, he doesn’t want to shift the legal landscape until he has the benefit of lots and lots of smart lawyerly briefs giving him a menu of the widest possible top‐​shelf legal thinking in favor of change. Roberts, by contrast, is cautious out of a theoretical commitment to judicial caution for its own sake. He simply doesn’t like it when the Court makes “big decisions” that reshape the legal landscape, especially in areas where politicians are heavily invested in the outcome. The latter approach–if this indeed characterizes the Chief, which the evidence increasingly suggests–is far more troubling over the long run.