re: #80 drcordell

I don’t disagree with every ruling he has made. But his statements at his confirmation hearing about being a “constructionist” and an “umpire” who only calls “balls and strikes” have been proven to be complete horseshit. With Citizens United vs. FEC he has proven himself to be the very definition of an “activist” judge.

I think he covers that…

It is only because the majority rejects Citizens United’s statutory claim that it proceeds to consider the group’s various constitutional arguments, beginning with its narrowest claim (that Hillary is not the functional equivalent of express advocacy) and proceeding to its broadest claim (that Austin v. Michigan Chamber of Commerce, 494U. S. 652 (1990) should be overruled). This is the same order of operations followed by the controlling opinion in Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007) (WRTL). There the appellant was able to prevail on its narrowest constitutional argument because its broadcast ads did not qualify as the functional equivalent of express advocacy; there was thus no need to go on to address the broader claim that McConnell v. Federal Election Comm’n, 540 U. S. 93 (2003), should be overruled. WRTL, 551 U. S., at 482; id., at 482–483 (ALITO, J., concurring).

This case is different—not, as the dissent suggests, because the approach taken in WRTL has been deemed a “failure,” post, at 11, but because, in the absence of any valid narrower ground of decision,there is no way to avoid Citizens United’s broader constitutional argument.

The dissent advocates an approach to addressing Citizens United’s claims that I find quite perplexing. It presumably agrees with the majority that Citizens United’s narrower statutory and constitutional arguments lack merit—otherwise its conclusion that the group should lose this case would make no sense. Despite agreeing that these narrower arguments fail, however, the dissent argues that the majority should nonetheless latch on to one of them in order to avoid reaching the broader constitutional question of whether Austin remains good law. It even suggests that the Court’s failure to adopt one of these concededly meritless arguments is a sign that the majority is not “serious about judicial restraint.” Post, at 16.

This approach is based on a false premise: that our practice of avoiding unnecessary (and unnecessarily broad) constitutional holdings somehow trumps our obligation faithfully to interpret the law. It should go without saying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right. Thus while it is true that “if it is not necessary to decide more, it is necessary not to decide more,” post, at 14 (internal quotation marks omitted), sometimes it is necessary to decide more.

There is a difference between judicial restraint and judicial abdication. When constitutional questions are “indispensably necessary” to resolving the case at hand, “the court must meet and decide them.” Ex parte Randolph, 20 F. Cas. 242, 254 (No. 11, 558) (CC Va.1833) (Marshall, C. J.).

make sense? stare decisis isn’t compelling enough to avoid answering the question.