Justice Scalia: Tenured Fox in the Democratic Hen-House?
| Author | Jane Marriott |
| Position | Lecturer in Law, School of Law, Royal Holloway, University of London |
| Pages | 41-57 |
Justice scalia:
tenured Fox in the democratic hen-house?
Jane Marriott*
University of London
ABSTRACT
This paper examines Justice Scalia’s approach to campaign nance adjudication, in
particular his skepticism of legislative motive. Three distinct strands of skepticism are
identied: power-grabbing, incumbent-bracing and speech-preventing. As regards de-
mocracy Justice Scalia is identied as being caught in denitional dilemma whereby
his campaign nance jurisprudence appears to serve a particular vision of democracy,
which is, itself, the identiable creature of his approach to constitutional adjudication.
Ultimately, it is argued that, whilst a liberal dose of mistrust of government might well
be warranted in cases concerning the devices of democracy, in the task of scrutinising
campaign nance regulation and reform, a strong argument emerges for suspicion of
judicial motives too since there is as much danger to democracy posed by the tenured
fox as by the incumbent one.
CONTENTS
Br. J. Am. Leg. Studies 6(1) (2017), DOI: 10.1515/bjals-2017-0004
© 2017 Jane Marriott, published by De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
* Lecturer in Law, School of Law, Royal Holloway, University of London.
i. introduction ................................................................................................42
ii. Buckley v. valeo ........................................................................................ 43
iii. selF-interest .............................................................................................44
A. Power Grabbing .................................................................................... 46
B. Incumbent Bracing ................................................................................ 47
C. Speech Preventing ................................................................................. 49
iv. Judging democracy: Paradox and dilemma ............................................. 52
A. Paradox ................................................................................................. 53
B. Dilemma ................................................................................................ 54
v. conclusion ..................................................................................................56
6 Br. J. Am. Leg. Studies (2017)
i. introduction
In the context of the 40th anniversary of Buckley v. Valeo,1 a recent line of authority
spurning electoral reforms,2 an election cycle in which expenditure on campaigning
exceeded $7 billion,3 and the death of Justice Scalia, it was perhaps unsurprising that
2016 came to be widely regarded as offering an opportunity for deliverance from
a Supreme Court majority seemingly bent on deregulation of the campaign nance
system and in denial of the consequences of its actions. Justice Scalia belonged
to the gang of ve – a ‘conservative on campaign nance’ cohort also comprising
Chief Justice Roberts and Justices Alito, Kennedy, and Thomas. Commentators
have condemned the resulting disgurement of American elections, with Justice
Scalia in receipt of much academic, political and public opprobrium, despite having
rarely authored a majority campaign nance opinion for the Court.4 It must be
acknowledged that, as in other areas of Supreme Court adjudication, Justice Scalia’s
dissents and concurrences on controversies in campaign nance tended to draw re
rather more readily than those of others. Given his judgments’ often stark concision
and potent bite, such was the nature of things.5 It must also be acknowledged that,
despite the undoubted transformative power of elections, the Trump victory is
unlikely to liberate the Court from the grip of its conservative Justices, or from
agenda led, market driven, laissez-faire campaign nance adjudication. The new
President’s recognition of a “broken”6 system and promise to “drain the swamp”7
might be welcome but the rhetoric is wholly disconnected from the reality that, on
regulation and reform, the Supreme Court’s role is determinative.
Given the prevalence of the 5-4 split in campaign nance cases, it is self-evident
that having to ll an empty seat on the Supreme Court bench could “ip national rules
for American elections by 180 degrees.”8 Currently, however, the possibility of an
about turn appears remote. Instead, with a probable, and probably increasingly acute,
lurch to the right as a result of successive Trump appointments to the Supreme Court,
2016 may prove a false dawn for campaign nance reform. At the time of writing it is
too early to say but, for the new administration, the issue may be set low on the agenda
and, given what has been achieved under the existing regulatory regime, the political
1 424 U.S. 1 (1976).
2 See Randall v. Sorrell, 548 U.S. 230 (2006), Federal Election Comm’n v. Wisconsin
Right to Life, 551 U.S. 449 (2007), Citizens United v. Federal Election Comm’n, 558
U.S. 310 (2010).
3 Projected gures as at 10 November 2016. See https://www.opensecrets.org/overview/
cost.php (accessed 3/7/17), showing total spending as $6,917,636,161, comprised of
$4,266,514,050 for Congressional races and $2,651,122,110 for the Presidential race.
4 See, e.g., Erwin Chemerinsky, Not a Free Speech Court, 53 ariz. l. rev. 723 (2011).
5 On Justice Scalia’s writing style, see Charles Fried, Manners Makyth Man: The Prose
Style of Justice Scalia, 16 harv. J. l. & PuB. Pol’y, 529 (1993); Kapgan, Of Golf and
Ghouls: The Prose Style of Justice Scalia, 9 J. leg. Writing inst. 71 (2003).
6 First Presidential Debate, Sep. 26, 2016.
7 https://www.donaldjtrump.com/press-releases/trump-pledges-to-drain-the-swamp
(last visited March 7, 2017).
8 Richard L. Hasen, After Scalia: The Future of United States Election Law, School
of Law, U.C. Irvine Sch. of Law Research Paper Series No 2016-14, available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2763713.
42
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