Linda Greenhouse believes that Chief Justice Roberts is "on the spot" as a constitutional challenge to the Voting Rights Act arrives at his Court.  Congress re-authorized the pre-clearance requirements of section 5, but not, throughout its ranks, sincerely.  Republicans could cast a vote disingenuously, having no use for section 5, and expect that the Chief Justice and his colleagues, in the litigation sure to follow, would do what was necessary.  A politically sensitive vote could be avoided; "politics" could be traded for high constitutional adjudication, with the same result.

     This is one example of Roberts being put in a position where he could appear to be answering the call from litigants banking on his ideological (jurisprudential) reliability.  It is not the only such case, campaign finance regulation being another.  Consider the Republican National Committee’s lawsuit to gut McCain-Feingold restrictions on national party soft money activity. 

     Launched immediately after the election, the RNC suit would free the Committee to use soft money for a host of purposes, including issue advocacy.  One RNC official candidly conceded that the action was meant to answer a practical and urgent political need:  to counter the Democratic Party’s superior capacity for raising small donations through the Internet.  Understood this way, it is a profoundly, hard-boiled political project, not to be confused with a constitutional cri de coeur. 

     Of course, this same RNC shepherds the national political affairs of a party whose leader, George W. Bush, signed these restrictions into law, and whose nominee in 2008 authored and supported them.  But that is a minor observation:  Bush is on the way out, McCain lost.  More to the point is the rushed scheduled the RNC is seeking—so far, successfully—for revisiting and reversing the Court’s decision only 5 years ago, in the McConnell case, to uphold the ban on national party soft money.  This haste is no surprise.  It corresponds to the political imperative the RNC perceives and that its officials have voiced:  the imperative of having large soft money donations with which to fight their competitor’s small donor, hard money advantage.

     On the current track, the RNC suit will come before the Court with its ambition nakedly obvious:  "we need the money, and so change your mind".  During his confirmation hearing, Chief Justice Roberts was asked about the McConnell case and he answered with care that the Court had grounded its decision in the legislative record.  The RNC suit does not aim to create an alternative record; the schedule for the case leaves no room for discovery.  Its aim is simply to put the same case and the same record before different decision-makers, relying on them to choose differently and set precedent to the side.

     Roberts is not, by the evidence so far, an admirer of federal campaign finance regulation, but he is the Chief Justice with a legacy to consider and he seems to have taken this responsibility somewhat to heart.  In WRTL, he sided with the plaintiffs but he did not go as far as he might have.  Of course, some critics have taken this to be faux restraint:  they believe that he shrewdly laid the groundwork for collapse of any protections against sham "issue advertising".  Time will tell.  But his opinion reflected a sensitivity to appearances:  he did not just disavow McConnell and lop off, all at once, all limits on issue advertising embedded with the "indicia" of express advocacy.

     The RNC will confront the Chief Justice with another such moment, but on this occasion, the openness of the political objective and the clarity of the political implications should add greatly to his discomfort.  He will be very much on the spot.

Bob Bauer