The Lonely Centrist and Allison Hayward have written trenchantly Justice Breyer’s remarkable performance at argument, in Wisconsin Right to Life.  Hayward could hardly find words, and so she offered this image:  the Justice throwing off his robes, donning a party hat and dancing with a Marshal.  This was how she captured the moment when the Justice demanded from Solicitor General Clement an explanation, irrelevant to the matter at hand, for the FEC’s failure to date to regulate 527s.  All bets were off; all controls had been abandoned; the Justice could kick back and say what was on his mind.

      The Lonely Centrist makes note of this same moment, and also observes that the Justice, who has made a habit of it in these kinds of cases, misstated the law and yet seemed altogether put out that he had been asked to rule on it.  

      The Lonely Centrist rightly sees the influence of "active liberty," the Justice’s distinctive jurisprudence, at work in this behavior.  This is a Justice whose mind is made up.  This jurisprudence is fixed, clear, uncompromising, even passionate.  To him, the control of campaign finance is indispensable to "workable government," which is essential to viable democracy; and the question of which "controls" will do the job is best left to experts who happen to be Members of Congress.  Application of this view explains his impatience at having to hear WRTL:  Congress has judged it imperative to curb corporate-paid issue ads, and this judgment is controlling, leaving the Court with little to do.  Congress is the institution with the expertise, which means that the Justices need not worry about the details.  If there is a problem—which the Justice believes "527s" to be—Congress should take care of it, or should have every confidence that the FEC will, as its delegate, take the necessary action.  Having decided McConnell, the Justice seemed to say, Court should get out the way and litigants, like the irrepressible Mr. Bopp, should stop trying to coax it out of retirement. 

     The Justice devoted some time last year to the book tour, promoting Active Liberty.  (See here for a review.)  He did better then, in the more relaxed, informal setting of the celebrity interview, than he did this last Tuesday, which cannot have been good for sales.

Bob Bauer