The Death Of Irony

Following up on yesterday's post on the special SCOTUS hearing on campaign finance laws, Slate's Dahlia Lithwick pulls no punches as she sees the court overturning a century of precedent in arguably the greatest example of "judicial activism" in decades.

The morning concludes with Seth Waxman doing a sort of Shakespeare in the Park reading of "the sober-minded Elihu Root," who was "moved to stand up in 1894 and urge the people" to address "a constantly growing evil which has done more to shake the confidence of plain people of small means of this country in our political institutions than any practice which has ever obtained since the founding of our government." Which is more or less lost on the majority of the court because 1894 was soooo a century ago, and as Scalia points out, today's corporations are awesome and not the "railroad barons and the rapacious trusts of the Elihu Root era."

Alito scolds Waxman because "all this talk about 100 years and 50 years sounds like the sort of sound bites that you hear on TV." (It's funny to hear TV sound bites denigrated as junk political speech in a case about the urgent political importance of TV sound bites.) But Alito's big point here is that the court isn't considering overruling 100-year-old cases—only McConnell and Austin.

Olson very effectively uses his five minutes of rebuttal time to taunt Kagan for the government's changed positions. And while it looks as though there are five votes to fundamentally alter the way American elections will work, we've been through enough renditions of the Roberts Court slapping litigants around at oral argument then loving on them in decisions to make such predictions unwise. Of course, as Waxman suggests in his closing, it does take a somewhat "self-starting" institution to be deciding a case about campaign finance laws in which no litigant has directly raised the issues and no factual record even exists.

But it's what conservatives want: Wal-Mart and Goldman Sachs and GE need to be able to buy campaigns to preserve America's free speech in 2010 and beyond.

What you and I think doesn't matter.