The Intellectual Dishonesty of the Conservative Majority of The Supreme CourtBy: masaccio - FDL
Sunday May 29, 2011 10:40 am
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Ronald Dworkin explains the intellectual dishonesty of several recent decisions by the conservatives on the Supreme Court in a recent article in The New York Review of Books. (subscription may be required)
http://www.nybooks.com/articles/archives/2011/may/26/courts-embarrassingly-bad-decisions/ . Dworkin is a major figure in American Jurisprudence, unlike most of the Supreme Court Justices, whose backgrounds are quite ordinary. As a measure of his importance, he ranks second (behind Richard Posner) among the most-cited legal scholars. This is significant, because in law, unlike science, appeals to authority are an accepted, indeed mandatory, form of argument.
One of the examples used by Dworkin is Arizona Free Enterprise PAC vs. Bennett, a follow-on to Citizens United. In Arizona, a candidates receive public money for their campaigns if they agree to limit their spending, but the law allows anyone to spend as much as they want if they don’t get public money. If a candidate who doesn’t receive public money spends more than a stipulated amount, the publicly funded candidate gets more money.
The stated rationale of Citizens United was that speech is good, and if you limit the amount of money rich people and their Waldo corporate persons can spend, you limit speech, which is bad. The Supreme Court hasn’t ruled in Arizona Free Enterprise PAC, but based on the transcripts of oral argument Dworkin says that the conservative justices
… agreed with the plaintiffs that the act would “chill” the speech of privately funded candidates who would know that if they
spent more than the stipulated limit their opponents would receive additional funding. In that way, they suggested, the act infringes the rights of privately funded candidates to speak as freely as they wish.
This is a bizarre argument. The five justices do not challenge the constitutionality of public funding; they hardly could since such funding obviously increases the amount—as well as the diversity—of political speech. But public funding presumably deters many rich candidates from broadcasting dubious claims they would happily broadcast if their opponents had no money to rebut them. Indeed, public funding for potential opponents might well deter some wealthy individuals from running for office and therefore from campaigning at all. The First Amendment can hardly be thought to guarantee rich politicians and organizations that they will not be effectively opposed, even when the possibility of effective opposition might induce them to say less.
It is indeed a bizarre argument, but you need bizarre arguments if you have an agenda you follow religiously. As Dworkin puts it:
So if a justice is disposed to advance goals through his decisions, he must invent arguments that disguise rather than exhibit his actual motivating convictions. These are likely to be artificial and therefore bad arguments.
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Much More:
http://firedoglake.com/2011/05/29/the-intellectual-dishonesty-of-the-conservative-majority-of-the-supreme-court/:kick:
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