The Chief Justice’s opinion finds the ban on using a candidate’s name in an issue ad unconstitutional. The ad in question urged viewers: “Contact Senators Feingold and Kohl and tell them to oppose the filibuster.” But the ruling does not reverse the holding in McConnell v. FEC that expressly advocate for a particular election result — i.e., it might still be constitutional to ban Wisconsin Right to Life from running an ad during the October before an election that says “don’t vote for Senators Feingold and Kohl.” Scalia, whose judicial philosophy places a lot of emphasis on the need for workable rules, writes in his partial-concurrence that there is no way to meaningfully distinguish between those two types of ads, and that he “would therefore reconsider the decision that sets us the unsavory task of separating issue-speech from election-speech with no clear criterion.” Thomas and Kennedy joined Scalia’s opinion.
Alito joined Roberts, but wrote in a separate concurrence:
[B]ecause §203 [the relevant section of McCain-Feingold] is unconstitutional as applied to the advertisements before us, it is unnecessary to go further and decide whether §203 is unconstitutional on its face. If it turns out that the implementation of the as-applied standard set out in the principal opinion impermissibly chills political speech, see [Scalia’s opinion]… we will presumably be asked in a future case to reconsider the holding in McConnell v. Federal Election Comm’n… that §203 is facially constitutional.
This illustrates the range of ways that conservatives can approach the question of precedent. Thomas will consider overturning a precedent that is contrary to original understanding as long as the litigants ask that said precendent be reconsidered. Scalia will overturn a precendent only if it fails to create a workable rule for the lower courts. Alito and Roberts will overturn a precedent only if doing so is necessary to reach the correct judgement in the case at hand. But Alito is happy to signal that he might reconsider a precedent in a future case; Roberts seems to prefer to hold his cards closer to his vest.
