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No Middle Ground—A Commentary by Heather K. Gerken

The following commentary was posted on newyorktimes.com on June 27, 2011.

No Middle Ground
By Heather K. Gerken

Heather K. Gerken is the J. Skelly Wright Professor of Law at Yale Law School.

What is it about campaign finance that brings out such hard-edged opinions from the justices? Today’s decision was as noteworthy for its rhetorical fireworks as for its substance. Chief Justice John Roberts and Justice Elena Kagan accused each other of ignoring the facts, ignoring the doctrine, even misunderstanding basic rules of logic. Neither left a single argument from the other unanswered.

The tone of the opinions was especially striking given that neither Justices Roberts nor Kagan possesses Justice Antonin Scalia’s inflammatory streak. Justice Roberts, for instance, was far less defensive in responding to Justice Samuel Alito’s impassioned dissent in Snyder v. Phelps than he was today, and yet Snyder (which concerned the picketing of the funeral of a soldier killed in Iraq) was the more inflammatory case.

So, too, Justice Kagan’s dissent today is a good deal more pointed than her recent dissent in another important case from this term involving taxpayer standing. You can play the same game with the court’s last campaign finance decision, Citizens United. There Justice Anthony Kennedy wrote one of his most hard-hitting decisions, and the mild-mannered Justice John Paul Stevens wrote what is perhaps his most vituperative dissent.

Why so much heat? I think it’s due to the state of campaign finance doctrine. This is not an area where the justices are gradually moving toward a shared middle ground. This is a doctrinal death match between two incompatible world views. The justices in these cases cannot agree on the basic premises undergirding campaign finance doctrine.

Some think money is speech; others think money is money. They disagree about what constitutes corruption. And here, one side thinks the Arizona matching fund provision punishes a candidate for speaking, while the other thinks it promotes “more speech all around,” as Kagan said during oral argument.

It’s hard to see the court finding a middle ground. One position or another is going to have to win out. The justices know it’s a fight to the finish, and they are writing their opinions accordingly. The stakes are high, and so is the rhetoric.