Causing a Stir

It's not often that Justice Stephen Breyer gets singled out, at least, individually.  He always gets lumped in with the other so-called liberal justices on the Court, but he has certainly caused a stir with his dissent in McCutcheon v. FEC.  The controversy seems to arise from his views on the First Amendment, which - according to his critics, anyway - rely upon on an emphasis on collective, rather than individual freedom.

As a specialist in how the justices get to the Court - rather than what they do when they get there - I do occasionally take an interest in judicial interpretation, though I can hardly call myself an expert.  I had always understood the First Amendment to apply to individual as well as collective rights, and I do accept the view of Breyer's critics that individual decision does indeed lead to collective speech or collective action.  It is clear why Breyer feels the way he does: like any intelligent person, he is aware that the 'level playing field' outlook has never really worked when applied to US society, whether it refers to race, gender or financial contributions to political campaigns.  But is this a call which he gets to make?


James O.