December 12, 2003,
The campaign-finance decision is yet more proof that the "conservative Rehnquist Court" that has occasioned so much scholarly and political debate does not actually exist. What we have is, at best, a centrist O'Connor Court. The decision also demonstrates a weakness in the conservative response to that Court.
One sometimes runs across conservatives who are hostile in principle to judicial review and want to abolish it. I'm not one of them, although I definitely understand the impulse. I do, however, want to strengthen constitutional checks on the power of the federal judiciary. For example, I'd like to see Congress exercise its power to regulate the courts' jurisdiction. Most conservatives, and especially most conservative lawyers, have preferred to concentrate their efforts on getting "good judges" confirmed. They have had a variety of reasons for this preference. One of those reasons not the most important reason, as it happens, but a reason is that anything that tends to weaken the ability of the federal judiciary to invalidate laws would weaken its ability to invalidate laws that conservatives believe are unconstitutional.
Liberals (and libertarians) may want the courts to strike down laws against abortion and pornography. Conservatives (and libertarians) want the Court to protect political speech, commercial speech, federalism, and executive-branch powers from laws that meddle with them. They want the Court to strike down racial preferences. They want it to invalidate state laws that they regard as violations of religious liberty (such as the Blaine amendments that prohibit government funding for religious schools).
Whether conservatives are right to want all of these things is a question for another day. My point today is that in practice, conservatives don't get many of them. The campaign-finance decision handed down this week is the latest evidence. The Court has not struck down campaign-finance regulations. It refused to set aside Michigan's set-asides. It is evasive on commercial speech. It never invalidated the independent-counsel law. It has shown no inclination to strike down the Blaine amendments. It must be conceded that in recent years, it has struck down some federal laws as violations of federalism. This federalist "revolution" has, however, been vastly exaggerated. The same Court that said that Congress could not directly prohibit guns in the schools was fairly clearly willing to allow Congress to bribe states to achieve the same result. There has been no revival of a strict reading of the enumerated powers of Congress.
One reason for conservatives' reluctance to challenge the scope of the Court's authority has been the hope that this authority would be used to further conservative aims. At some point, it will dawn on conservatives that this hope is hollow. The invalidation of the Gun-Free Schools Act is not worth the price of judicial activism on everything from term limits to gay marriage.