Over the holiday weekend, James Taranto of The Wall Street Journal had a great column discussing Justice Kagan’s dissent in last week’s decision striking down Arizona’s so-called “Clean Elections” law. Here’s a snippet:
“The difficulty,” Kagan writes, “is in finding the Goldilocks solution--not too large, not too small, but just right.” Finding such solutions is the job of lawmakers, not judges: “Arizonans deserve the chance to reform their electoral system.” To sloganeer E.J. Dionne, that is an expression of judicial restraint. “Remember how sympathetic conservatives are supposed to be to the states as ‘laboratories of democracy,’ pioneering solutions to hard problems?” he grouses. “Tell that to the people of Arizona.”
But there’s a world of difference between judicial restraint and judicial dereliction of duty. James Madison was not Goldilocks, and the First Amendment says, “Congress shall make no law.” (That applies to the states as well, thanks to the doctrine of incorporation.) The court is obliged to strike down laws violating freedom of speech even if they were enacted with the best of intentions.