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]