Tuesday’s oral argument in McCutcheon v. FEC, the latest high-profile campaign finance case, will likely generate familiar storylines about a fiercely ideological Supreme Court, where one justice drives the outcome of a close 5-4 decision. Public perception of the Supreme Court is that there are four conservatives, four liberals and Justice Anthony Kennedy in the middle — as the “swing” vote. But that’s wrong — at least where voting rights and campaign finance cases are concerned. Though Kennedy’s vote dictates some outcomes when the court is split 5-4 along ideological lines, another justice has been the driving force behind current election law jurisprudence. In this matter, it is truly Chief Justice John Roberts’s court. Since Roberts became chief justice in 2005, the court has issued 23 written opinions involving voting rights, redistricting or campaign finance. Roberts is the only justice who has been in the majority every time. In addition, he has written twice as many majority opinions in this field as any other justice — six, as compared to Kennedy’s three. Roberts has now written more than 25 percent of the election law decisions handed down since he joined the court.
He has also likely influenced the language on many others. Seven of the 23 election law cases were decided “per curiam,” or without a publicly-disclosed author because they are “by the court” as a whole. So Roberts may also have had a hand in drafting these opinions.
As chief justice, Roberts assigns the opinion writer whenever he is in the majority. He therefore affects these cases strategically, even when he does not draft the opinion himself. Roberts’s choice of opinion author can ensure the decisions have the kind of language and arguments he wants.
If this all sounds like inside baseball — it is. But it has a significant impact on the scope of the decisions that the court issues.
For one, the Supreme Court has not upheld a single campaign finance limitation since Roberts’s ascension to the high bench.
More significantly for McCutcheon, however, the language and scope of the decisions have continued to restrict the ability of Congress and the states to regulate money in politics. Since 2006, for example, the court has invalidated a Vermont contribution limitation, an Arizona public financing scheme, and — most notoriously — federal limits on corporate spending in elections in Citizens United.
This is a big problem — particularly for those who believe money can have too large of an impact on electoral outcomes.