Some High Court Modesty Is in Order

Depending on how these justices vote, we could soon enter an era of deregulated campaign finance spending in which corporations and unions can spend unlimited sums on advertising that supports or opposes candidates for office, and corporations, unions and wealthy individuals can effectively give any amount to political parties to bankroll campaigns. Then again, they could vote to allow Congress, via McCain-Feingold, to close loopholes in the existing system and create stronger controls on the campaign finance system than we have seen in a generation.

How did it come to pass that a couple of justices can have so much control over the regulation of U.S. politics? After all, the detailed ins and outs of how to run elections simply aren't addressed in the Constitution. But court intervention in this area is hardly novel. Since the 1960s, the court has shown no inclination to stay out of politics.

The trend goes back at least to the Warren court and Baker vs. Carr, which allowed the court to begin hearing cases about how voter districts were apportioned. Then, the court majority presented itself as merely "interpreting" the Constitution in finding, for example, the "one person, one vote" principle contained in the equal protection clause of the 14th Amendment.

But far from being neutral acts of constitutional interpretation, political-process cases reveal the value judgments of the justices.

Consider the 1966 case, Harper vs. Virginia Board of Elections. The Supreme Court struck down Virginia's poll tax as unconstitutional on a 6-3 vote. Yet when the court initially took the case, there was a 6-3 majority vote to summarily uphold the tax -- based on the states' right to set voter qualifications -- over an impassioned draft dissent written by Justice Arthur Goldberg.

What happened? Justice Hugo Black did not want to leave Justice Goldberg's dissent unanswered and called for a full hearing; Black got burned. Three justices who had at first voted to uphold the tax simply changed their minds about the meaning of the equal protection clause, leading to an opinion that is now viewed as one of the foremost Warren court political-process cases.