Historians may one day look back on this week as the true beginning of “the Roberts court.” In two milestone decisions, Chief Justice John G. Roberts struck mighty blows this week on behalf of restoring two of the most basic principles of the American creed. Those principles are the right of every person to speak his or her mind about his elected representatives without fear of official penalty and the right of every person to be treated equally under the law without regard to his or her ethnicity.
As the youngest chief justice since John Marshall ascended to the bench, Roberts — joined vigorously by Justices Antonin Scalia, Clarence Thomas and Samuel Alito, and more reservedly by Justice John Paul Stevens — laid the foundation for a renewed respect for, and adherence to, the Constitution.
The first blow came Monday in FEC v. Wisconsin Right to Life Inc., when the Roberts court struck down as unconstitutional a key provision of the Bipartisan Campaign Reform Act of 2002. The offending provision banned certain broadcast political ads mentioning the names of specific candidates — i.e. incumbent congressmen — during the 60 days prior to a general election and 30 days before a primary balloting.
The chief justice noted in the decision that the First Amendment requires a strong presumption against official censorship of political speech. And in a refreshingly direct statement, Roberts threw out the idea that federal bureaucrats can constitutionally assess the propriety of political speech based on the speakers’ intent.
“Enough is enough,” Roberts said. We can almost hear the founding generation that gave us America saying “hear, hear!”
The second blow came Thursday as the Roberts court dared touch the third rail of federal judicial activism, the notion that students can be assigned to specific public schools because of their race. In doing so, Roberts blew away the sophistic fog that advocates of racial quotas in education have used for decades to obscure the obvious: Telling Johnny he must go to a specific school because he is black or white is as great a constitutional outrage when practiced by progressive educators in 2007 as it was when carried out by Southern segregationists prior to the landmark 1954 decision in Brown v. Board of Education.
In a passage that invites legal challenges of race-based classification in other spheres of activity, Roberts noted that “accepting racial balancing as a compelling state interest would justify imposing racial proportionality throughout American society, contrary to the court’s repeated admonitions that this is unconstitutional. While the school districts use various verbal formulations to describe the interest they seek to promote — racial diversity, avoidance of racial isolation, racial integration — they offer no definition suggesting that their interest differs from racial balancing.”
His clear-headed reasoning was an eloquent expression of judicial restraint.
