“They’re upholding something that is unconstitutional, which is bad no matter how you spin it.”
No, they did not address the constitutionality of the act in its entirety.
Justice Scalia did.
And if Roberts and Alito had followed his lead, as did Thomas and Kennedy, this conversation would be over, and we'd have the First Amendment back.
Scalia:
Which brings me to the question of stare decisis. “Stare decisis is not an inexorable command” or “’a mechanical formula of adherence to the latest decision.’” Payne v. Tennessee, 501 U. S. 808, 828 (1991) (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940)). It is instead “’a principle of policy,’” Payne, supra, at 828, and this Court has a “considered practice” not to apply that principle of policy “as rigidly in constitutional as in nonconstitutional cases.” Glidden Co. v. Zdanok, 370 U. S. 530, 543 (1962). This Court has not hesitated to overrule decisions offensive to the First Amendment (a “fixed star in our constitutional constellation,” if there is one, West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943)).and to do so promptly where fundamental error was apparent. Just three years after our erroneous decision in Minersville School Dist. v. Gobitis, 310 U. S. 586 (1940), the Court corrected the error in Barnette. Overruling a constitutional case decided just a few years earlier is far from unprecedented.
Of particular relevance to the stare decisis question in these cases is the impracticability of the regime created by McConnell. Stare decisis considerations carry little weight when an erroneous “governing decisio[n]” has created an “unworkable” legal regime. Payne, supra, at 827. As described above, the McConnell regime is unworkable because of the inability of any acceptable as-applied test to validate the facial constitutionality of §203.that is, its inability to sustain proscription of the vast majority of issue ads. We could render the regime workable only by effectively overruling McConnell without saying so. adopting a clear as-applied rule protective of speech in the "heartland" of what Congress prohibited. The promise of an administrable as-applied rule that is both effective in the vindication of First Amendment rights and consistent with McConnell's holding is illusory.
It is not as though McConnell produced a settled body of law. Indeed, it is far more accurate to say that McConnell unsettled a body of law.
In case you didn’t notice, what I just posted from Justice Scalia was a hard slam against Roberts and Alito.
I’m starting to see Roberts and Alito as Sandra Day O’Conner redux: Unreliable and unpredictable.