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it is pictures rather than propositions, metaphors rather than statements, which determine most of our philosophical convictions
–Richard Rorty, Philosophy and the Mirror of Nature

Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.
Benjamin Cardozo

We exist in a free marketplace of ideas, or so we might say. The Supreme Court’s recent opinion on Citizens United v. the Federal Election Commission sought to protect that marketplace by curbing regulations on corporate spending on political speech. As the Court opined, these regulations constituted censorship, and “the censorship that we confront is vast in its reach.”

The majority opinion of Citizens United v. FEC has been framed in many ways. President Obama observed in his State of the Union, “the Supreme Court reversed a century of law that I believe will open the floodgates for special interests.” Lawrence Lessig characterizes it as indicative of the progressive and now explicit capture of our elected institutions by corporate interests. And perhaps more sinister, Ronald Dworkin, writing for the New York Review of Books, speculates that the majority repositioned the case, accelerated its consideration, and designed the decision to aid the Republican party in the 2010 election season.

The Supreme Court’s majority countered that these concerns are moot to hysterical. Instead, they asserted that the proper function of the free marketplace of ideas relies on liquidity, and what better way to increase liquidity than to throw out the McCain-Feingold bill, undermine longstanding bans on direct campaign contributions that date back to 1907, and otherwise tear down the restrictions that had kept corporate spending in check. The free marketplace for ideas, after all, would yield the fittest through rude competition. The question before the court was only whether that marketplace was free. From there, the Roberts Court could presumably “call balls and strikes.” Read the rest of this entry »

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