The Strategic Mr. Roberts

I’m beginning to think Roberts wanted McConnell at oral argument in order to make his radical views seem like a moderate compromise.

[Updated 3:59 PM. In the comments, commenter Bill Placke found this post objectionable because it didn’t add to an understanding of the issues. In response to his concerns, let me flesh it out — I will still be hasty because of time pressures. Many of us were wondering why McConnell was given time to speak. One would be left wondering after oral argument, given that the Justices were not particularly welcoming of McConnell’s views. The sentence above would give some explanation of a puzzling action. Given Roberts’ past actions (Shelby County and the invention of “equal sovereignty”; Randall v. Sorrell and the impatient “enough is enough”; overturning parts of McConnell in WRTL), combined with his lip service to Stare Decisis (Randall), there is reason to think that Roberts like making big steps with campaign finance but (unlike Scalia or Kennedy) framing them as moderate steps.  In this light, the McConnell invitation makes more sense. It reshapes the argument about aggregate limits. With McConnell present at argument, anything less than reframing contribution limits as subject to strict scrutiny will appear more moderate. – ZT]

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9 Responses

  1. Bill Placke says:

    Believe your guest columnist status should be revoked. This is not some partisan, hack place for you to spout your political views. The idea, and has been consistently shown through the years, is for erudite analysis of law that at times goes into public policy. Save your political rantings for another more appropriate forum.

  2. Zephyr Teachout says:

    Dear Bill,

    Thanks for your comment. I had wondered about the shorter form as well. My understanding of the blog is that it should be used as a blend of short and long commentary: the shorter commentary is because of the current court argument.

    I may write a longer version of the Roberts’ analysis as well–I take your point, but I reject the premise about the partisan nature (this has to do with analysis of the strategic approach of Justices, something which is well within the ambit of discussion), just the concern about the pithy nature. I will write more long-form in the future–I had wondered about this as well, but decided to do the shorter form because of the evolving discussion.


  3. Bruce Boyden says:

    Bill, what are you talking about?

  4. Bill Placke says:

    Bruce, how is the following a legal analysis or permit a deeper understanding of the argument or the legal issues at hand: “I’m beginning to think Roberts wanted McConnell at oral argument in order to make his radical views seem like a moderate compromise.”

  5. Joe says:

    The title makes me think of the Henry Fonda movie. I will avoid trying to do a Jimmy Cagney impression.

    As to the concerns of the first post, the original comment was a bit brief [though past entries provided substantive content, including replies to comments to clarify some more] but doesn’t seem “rant” material. Rather brief, for one thing.

  6. Bruce Boyden says:

    Bill, it’s an impressionistic comment on the oral arguments today. There is absolutely nothing about this blog that makes such speculation about judicial strategy out of place or beyond the pale, and I’m mystified that it has even entered your mind that there is anything inappropriate with this post. Blog posts take all forms, on this blog and others, everything from musings about politics to comments on pop culture. There is no requirement that I have ever witnessed anywhere that every post contain “a legal analysis or permit a deeper understanding” of anything. If you’re irritated by the content, that’s one thing, but that doesn’t make it a violation of form.

  7. Bill Placke says:

    thanks much for the fuller explanation ZT.

  8. Zephyr Teachout says:

    You’re welcome Bill! My mother would agree with you–I don’t always explain myself fully. She called it the “its tiger striped” problem, after Laura Ingalls Wilder, who just exclaimed “its tiger striped!”, not explaining that she was talking about the new roofing.


  9. Shag from Brookline says:

    I’m pleased that Zephyr is not so gentle in blowing away at the winds of corruption that have polluted politics. Justice “Scowlia” suggests that $3.5 million is mere chump change for those with deep pockets who expect nothing more than good government with such donations and no quid pro quo. Of course corruption is difficult to define but like pornography those who are not blind know it when they see it. And Justice “Scowlia” has blinders on as he reads only the Wall Street Journal and the Washington Times.