BCRA CHALLENGE

I've got the four-page "Chart of the Court's ruling" from the recent blob of an opinion issued in the BCRA case this week taped up on the wall in front of my desk. I couldn't download all the opinions when I first got them because my e-mail server balked at the huge file sizes. But that doesn't really matter, since I'm hardly going to spend the next week of my life sifting through sixteen hundred pages of argument, even if they are double-spaced. I have been trying to follow the discussions at Rick Hasen's blog, however; he is an excellent guide to the issues.

One thing that a political scientist might ask about the case is why Judge Henderson's name is always in the "unconstitutional" or "nonjusticiable" column, and why Judge Kollar-Kotelly's name is almost always in the "constitutional" column. According to my chart, Judge Henderson only thought that one part of the act could withstand constitutional scrutiny: section 323(e). Kollar-Kotelly was willing to find some parts of the act unconstitutional: 201 subsection (5), and sections 213, 318, and 504. And Judge Leon was just all over the map.

It can't be the case that "the law" dictates the result here, can it? (I'm reminded of the joke you occassionally hear that runs along the following lines: ask 2 [whatever kind of talkative and sophisticated person you choose] and you'll get 3 opinions.) Unless one or more of the judges is clearly a hack, I think you'd have to admit that these are issues that can be decided by reasonable people -- and people who are faithfully performing the function that the legal culture assigns to them -- in different and mutually exclusive ways. But the grooves of opinion here are not random. They're well-worn, developed by thoughtful people in relatively predictable ways that match up in a relatively predictable fashion with other positions that are associated with political parties. The match may not be perfect, but it's not entirely imperfect, either.