05/06/2008 05:41 pm ET | Updated May 25, 2011

Code Words and McCain's Speech on Judges

If the proper role of the judiciary is going to be one of "the defining issues of this presidential election," as John McCain asserted today, he should try to develop a coherent position on the topic.

At his speech in North Carolina, McCain expressed his opposition to judges who issue opinions "wandering farther and farther from the clear meanings of the Constitution" and who solve "policy questions that should be decided democratically."

The problem is that the justices McCain hails as the paragons of constitutional fidelity and judicial restraint - John Roberts and Samuel Alito - have been quite activist in a number of cases, departing from the Constitution's text and history and sharply limiting important federal, state, and local laws passed by overwhelming popular majorities.

John McCain knows this, of course, because one of the better examples is FEC v. Wisconsin Right to Life, a 5-4 opinion written by Roberts in 2007 which defangs the limits on corporate issue ads imposed by the McCain/Feingold Bipartisan Campaign Reform Act. McCain initiated the suit against Wisconsin Right to Life and when the Court limited his law he called its opinion "regrettable."

He is right about that. The limits on corporate issue ads comport squarely with Constitutional text, which never uses the term "corporations," referring instead to protections for "persons," "the people," and "citizens." Early in our nation's history, Chief Justice John Marshall called corporations "an artificial being, invisible, intangible, and existing only in contemplation of the law." Echoing Marshall in 1990, the Court held that "the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures [by corporations]." Roberts and Alito refused to apply this rule about corporate expenditures to the issue ads challenged in Wisconsin Right to Life.

It's no surprise that McCain failed to mention Wisconsin Right to Life in his speech. Movement conservatives hate McCain/Feingold and like the Court's opinion striking down the restriction on corporate issue ads. McCain could not reiterate his opposition to the Court's ruling and hope to reassure his base that he will toe the line on judges.

This reflects a more fundamental dichotomy between what McCain is saying about the role of the judiciary and the results movement conservatives demand from their judges. Frequently, the Constitution's text and history point in a progressive direction. This requires conservative judges to make a choice: honor their professed commitment to being impartial constitutional umpires, or find a way to reach a conservative result.

Sadly, the voting patterns of McCain's model judges, John Roberts and Samuel Alito, indicate that they are choosing the latter course. In the 2006-2007 term, Roberts and Alito voted together in 21 of the 23 cases where the Court split 5-4, forming with Justices Thomas and Scalia a solid conservative bloc of four justices in every major case splitting the court along ideological lines.

These stubborn facts, coupled with McCain's refusal to raise the inconvenient Wisconsin Right to Life case, suggest McCain is using politically resonant terms such as fidelity to the Constitution and judicial restraints not in their ordinary meaning but as code words, signifying that he will nominate judges who will do just about whatever his party's far-right base desires.