Campaign finance ruling reflects Supreme Court's growing audacity

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The Supreme Court on Thursday upended a century's worth of campaign finance law. An immediate question raised by the Citizens United v. Federal Election Commission decision is whether this will flood elections with suddenly legal corporate money. Less understood but deeply significant is what this shows about the court and its relationship to the Obama administration and Congress.

This far-reaching ruling augurs a significant power struggle. For the first time since 1937, an increasingly conservative federal judiciary faces a progressive and activist Congress and president. Until now, it was unclear how the justices would accommodate the new political alignment. The Citizens United decision suggests an assertive court, eager to overturn precedent, looming as a challenge to President Obama's agenda.

Through most of American history, courts have usually stood to the right of the elected branches, especially on issues concerning business. Progressive Era federal judges routinely voided social legislation, from the income tax to the minimum wage and limits on the hours worked by women and children. In the New Deal, the Supreme Court's "nine old men" struck down myriad new programs until Franklin Roosevelt tried to pack the court by expanding its ranks. Only then did the justices relent. (Wags dubbed it "the switch in time that saved nine.") Republican presidents have appointed 12 of the 15 new justices over the past four decades. But those justices had few liberal laws to react to.

Now, though, as elected branches have moved haltingly to the left, the court has moved sharply right. Chief Justice John Roberts has mustered five votes for a conservative judicial approach that eluded his predecessors Warren Burger and William Rehnquist. Long-germinating conservative legal theories have begun to guide opinions, most notably in the 2008 case that found an inviolable right to own a handgun that the court had never previously discerned in 200 years.

Many expected the first big clash of the Obama era to come in voting rights. Last year the court considered reauthorization of the Voting Rights Act of 1965, the landmark civil rights statute. In oral argument, Roberts and Samuel Alito made clear their distaste for the law. But voting 8 to 1, the justices pulled back from making a constitutional ruling at all. Whether through prudent application of the doctrine of "constitutional avoidance," or canny judicial statesmanship, or just an aversion to bad press, the court swerved away from a confrontation. It upheld the landmark law but left it open to future challenges.

http://www.washingtonpost.com/wp-dyn/content/article/2010/01/21/AR2010012103199_pf.html