"[T]he principal opinion's attempt at distinguishing McConnell [v. FEC] is unpersuasive enough, and the change in the law it works is substantial enough, that seven Justices of the Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so. This faux judicial restraint is judicial obfuscation."
This is one of my pet peeves of Constitutional Law. I absolutely detest when the Court overrules or ignores precedent without explicitly doing so. I hate pretend judicial restraint.
If the Court wishes to overturn McConnell, it is certainly their prerogative. But to essentially invalidate the holding of that case while then speaking of judicial restraint is just insulting. We're not idiots. I'm hardly an expert on campaign law and even I can see there isn't a whole lot left of McConnell, especially since several Justices explicitly wished to overrule it (Scalia gets jobbed of his opportunity, at least he was being honest about his opinion).
OK, since I'm ranting about academic honesty, let me lay some cards on the table. I disagree with the new holding, and think its just an invitation for election fraud and the further corrupting influence of money on politics. No one honestly believes "issue ads" aren't political ads for a candidate, not even the Court. But at least Scalia in his concurrence had the decency to be honest about what he was doing. I can disagree with his logic (I do, I honestly believe political ads are commercial speech on a topic of public concern, and Con Ed v. Public Services Commission is the controlling authority -- but that's why I'm not a Constitutional scholar), but he's certainly on sound footing when he makes his argument.* The majority decision, however, is based on a lie that they are respecting the previous holding of McConnell. They aren't. I'm just asking for some intellectual honesty. I'm fine with decisions I disagree with. I'm not fine with decisions which are based on sophistry.
You're the Supreme Court, if you want to overrule a case, just overrule the damn case.
*Probably stronger than mine. Let's assume Scalia is right and I'm wrong. That's always a good assumption. Then again, I'm simplifying my argument because you don't care that much, and to make a more nuanced argument will just result in (further) embarrassment for me.
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