But Kagan may have conceded too much. Everyone expects the Court to rule against the government’s effort to regulate Hillary: The Movie, a 90-minute, anti-Hillary Clinton video funded with minimal corporate funding; the bigger question before the Court is whether it should also gut the McCain-Feingold campaign finance law by overturning two cases that allow corporate campaign expenditures to be regulated more intensely than expenditures by individuals. By focusing on the possibility of corruption, Kagan stressed the justification for campaign finance regulations that has appealed to the greatest number of justices in the past–but it’s a weak argument in cases like this, where truly independent ideological corporations aren’t interested in making corrupt quid pro quo deals with the candidates they’re supporting. It’s possible, however, to defend the regulation of corporate speech in a way that respects the First Amendment–and that does not make implausible assertions about quid pro quo corruption or constitutionally questionable claims about the need to level the playing field for rich and poor speakers. When citizens believe that they have no ability to influence public debate because the free speech market is so unfairly dominated by wealthy corporations, individuals may lose faith in their ability to participate meaningfully in politics. By emphasizing this argument–which has less to do with equality than democratic legitimacy–Kagan might have made it harder for the conservative majority on the Court to issue a radical ruling that could reverse decades of precedent and threaten restrictions on corporate speech that have been embodied in federal law for more than a century.
There just seems to be a misunderstanding here about what arguments can and can’t do. Rosen may think that an alternative argument is a better argument—and his theory sounds reasonable to me—but it’s very hard to see how an alternative argument would actually “have made it harder” for the conservative majority to reverse decades of precedent. What would prevent the conservative majority from reversing decades of precedent would be if either Justice Thomas or else Justice Scalia or else Chief Justice Roberts or else Justice Alito or else Justice Kennedy didn’t want to gut campaign finance regulation. Insofar as they do want to do that, Elana Kagan can’t stop them with the sheer force of her argument.
Of course it’s possible for one or more Justice to enter oral arguments with a genuinely open mind. But the whole reason people are now assuming that the court will overturn precedent is that at oral arguments the Justices gave the impression of having already made up their minds.