Category Archives: Constitution

The Supreme-ly Corrupt Court

If the America we thought we inhabited increasingly seems to be circling the drain, the blatant corruption of the nation’s high court bears much of the blame. A recent essay by Josh Marshall, editor of Talking Points Memo, provided a good overview of that corruption.

That essay sheds a light on the enormity of the Court’s deviation from–and arguably trashing of–the U.S. Constitution. The title of the essay is stark, but accurate: “You Can Have Democracy or the Corrupt Court–But Not Both.”

Marshall sets out his thesis in the first paragraph.

Within the system begun with Marbury v. Madison — a system certainly subject to many reasonable critiques — it is possible to have more liberal or conservative jurisprudences, more activist or restrained courts, loosely tethered to the progress of presidencies and senates. The Roberts Court is a different beast. It is the product of a decades-long effort to corrupt the federal judiciary. That degree of corruption first came into full view in the second decade of this century when the Court openly began to do three closely interrelated but conceptually distinct things.

The first of those three things is the jettisoning of stare decisis, the legal word meaning respect for precedent. The Roberts Court has, as Marshall reminds us, “manufactured new doctrines and purported constitutional dictates which simply do not exist in the document.” Some of these previously unknown doctrines are inconsistent with the plain text of the Constitution. Marshall says that the greatest example is the presidential immunity decision, which was, as legal observers have argued, “a ruling contradicted not only by all the history of the document but its clear language.” Marshall is absolutely correct to characterize it as “corrupt, illegitimate and a wholesale attack on the Constitution itself.” (As he also points out, the mere fact that the Court accepted the birthright citizenship case demonstrates that it has determined to ignore the clear meaning of the the language in the Constitution.)

Marshall’s second point is closely related to the first: this is a Court with political goals rather than a defensible jurisprudence. It chooses arguments for convenience in order to arrive at an ideologically desired end. He cites a recent example:

Presidents can fire anyone in the executive branch based on nothing more than the presidential will, even when Congress has specifically given those appointees protections against such dismissals. Except the Federal Reserve, even thought it is by every measure an independent federal agency constitutionally indistinguishable from the rest. Why is it different? Because Federalist Society ideologues actually don’t like inflationary monetary policy. So in this one case, it’s different … except when it’s not.

Third–and most obvious–political power is for Republicans only. As Marshall reminds us, when Republicans are in power,  Presidential powers are almost limitless; “when it’s Democrats, the office is enfeebled and hemmed in by a cobweb of invented doctrines,” something made painfully obvious by decisions rendered during the two Trump presidencies versus Biden’s.

Perhaps the most important point Marshall makes is that the word “corruption” is not limited to “venal corruption” (bribery, conflicts of interest, “kept justices like Clarence Thomas”). Those sorts of corrupt behaviors eventually get exposed. A more covert, general–and worrisome– corruption is a form of rot that becomes “a systemic and ingrained abuse of power.”

That is the case with the Supreme Court, and it’s especially dangerous with the Supreme Court because a mix of history and restraint have left very few checks on its abuses. The corruption has spun so far out of control because the six corrupt appointees believe, not unreasonably, that there are zero checks on their abuses. It is that sustained lack of accountability and impunity which moves an institution from one-off abuses of power toward the kind of ingrained corruption you now see in the Supreme Court.

That’s the corruption that has become ever more evident in the increasing brazenness of the Roberts Court, which frequently ignores the appellate process, the fact-finding of trials, and long-standing issues governing the right to sue. As Marshall says,  “The corruption runs so deep there is simply little effort any more to hide it.”

Most lawyers I know have been reluctant to embrace Court reforms, but as this Court continues to assume previously unknown powers–as it has misused its Shadow Docket and embraced obviously anti-constitutional ends– more and more of us have come to recognize the imperative of reigning it in if we are to save America’s constitutional democracy.

As Marshall says, this Court is not interpreting the Constitution. It is undermining it.

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Documenting The Decline

Paul Krugman recently talked with Lisa Graves, the author of the profoundly depressing book “Without Precedent.” The book charted the decline–okay, let’s be accurate, the corruption–of the Supreme Court under John Roberts.

Graves asserts that the decline in Supreme Court intellectual honesty started with the political decision in Bush v. Gore. Her analysis was that the result in that case, in which five Republicans on the Court voted to stop the 2000 Florida recount, was a precursor to what came next. The effect of that decision was to hand over the presidency to George W. Bush, along with the power to remake the courts, the Supreme Court in particular.

Graves’ research into that case turned up information of which most of us were unaware. It turned out that, at that time, Ginny Thomas–Clarence Thomas’s wife–was working for the Heritage Foundation on the predecessor to Project 2025 and screening people for positions in the potential George W. Bush administration. That obvious conflict didn’t cause Clarence Thomas to recuse himself from the case. Had he done so, that five-four decision would have been four-four. As Graves noted, “The count would have been allowed to proceed. And the count that actually occurred with news organizations after the fact, after Bush was sworn in, showed that Gore would have won Florida and would have become the president of the United States.”

After the vote, Ginni Thomas was given a lucrative promotion…

Two vacancies came up early in Bush’s tenure–one for O’Connor’s seat and one for Rehnquist’s. John Roberts became chief justice, and Samuel Alito joined the Court, appointments that help explain Citizens United. Citizens United was–once again– a 5-to-4 decision, and once again, Clarence Thomas provided the fifth vote, failing to recuse himself “even though a billionaire named Harlan Crowe had staked his wife Ginni Thomas with $500,000 to launch a group to take advantage of the decision to come in Citizens United, to allow these so-called C4 groups under the IRS code to spend unlimited money to influence elections.” (Not only did Thomas not recuse himself, as Graves notes, he “even had the audacity to write a concurring opinion saying that disclosure of money being spent by these groups — who the sources are — would chill speech.”

As readers of this blog know, among other incredibly negative consequences, Citizens United spawned the super-PACS that spend unlimited and untraceable amounts of money. The linked conversation goes into extensive detail about the ways in which that decision has distorted the political process, enriched the already obscenely wealthy, and benefitted fossil fuel companies. (The transcript also provides fascinating detail about Trump’s corruption.)

When the conversation gets to John Roberts, Graves reminds us that it was Roberts who orchestrated the destruction of Sections 4 and 5 of the Voting Rights Act. (She predicts that he’s likely to do the same to Section 2 in a pending case.)

But what people don’t realize is that John Roberts cut his teeth on trying to block the extension of the Voting Rights Act, trying to block the repair of the Voting Rights Act after his mentor, Bill Rehnquist, helped destroy a significant component of that act, which was designed to prevent the dilution of Black votes.

Graves says that Roberts was chosen for the Supreme Court “not because they thought he would be fair, but because they thought he would be a ringer.” As a Reagan revolutionary atop the Justice Department, he’d tried to block renewal of the Voting Rights Act, and during his time in the White House counsel’s office, he tried to block civil rights enforcement.

With Roberts and Souter joining Thomas, Republicans secured a court that is aiding Donald Trump and the Republican Party at almost every turn. Roberts orchestrated the decision giving Trump unprecedented immunity from criminal prosecution. Add to that the 24 “shadow docket” rulings last year that allowed Trump to continue with unconstitutional assertions of presidential power that lower courts had temporarily enjoined until the cases were finally resolved.

The transcript is lengthy, but I recommend its explanations for those who–like yours truly–have been appalled by the political takeover of the nation’s high court. Graves has been exploring various reforms, including term limits and court expansion, and especially binding ethics reforms. As she notes, “having a billionaire or a billionaire-funded group on the right funding a spouse, fueling a spouse’s income that feathers the nest of the justice. That’s outrageous and wrong.”

Read her book.

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An Indecent Law

How many times have we seen efforts at censorship justified as “protecting the children”? This solicitous concern for children never seems to extend to feeding hungry children or clothing freezing children…instead, it is almost always focused on protecting them from what the concerned folks consider smut–which is pretty much anything of which they disapprove.

I’ve seen this show multiple times. Currently, it’s playing in Ohio, where Republican lawmakers are proposing to protect children by “updating” the state’s obscenity laws with an “Indecent Exposure Modernization Act.”

“Ohio has clear gaps in its indecent exposure and obscenity laws,” said Rep. Josh Williams, R-Sylvania Township, one of the bill’s sponsors. “The legislature has said time and time again that kids should not be exposed to obscene material. Now we are taking the step to ensure that the same type of obscene performances that they cannot watch online, they can’t watch in person.”

And what sort of “obscene performances” are these intrepid culture warriors seeking to ban? If you guessed drag shows, you win the prize….The legislation identifies “obscene performances” as those with “performers or entertainers who exhibit a gender identity that is different from the performer’s or entertainer’s biological sex using clothing, makeup, prosthetic or imitation genitals or breasts, or other physical markers.”

Mrs. Doubtfire, I presume…

The Ohio ACLU, among others, warned against the “chilling effect” such laws have on free speech, noting that for decades, these types of laws have been used to target unpopular speech and art.

“This bill takes regular, everyday activities and turns them into potential crimes, based on whether somebody else might be offended by what other people are wearing,” said Dwayne Steward, executive director and CEO of Equality Ohio and Equality Ohio Education Fund, in a statement. “This bill gives government the unacceptable power to police what people wear.”

In a nod to the very subjective nature of what constitutes “obscenity,” the legislation Includes exceptions for breastfeeding and “bona fide” artistic performances. The questions of who decides when an artistic performance is “bona fide,” and what criteria are to be applied in order to make that determination are not addressed. Several constitutional law professors, as well as the ACLU, explained that the bill is unconstitutionally vague, requires (already overburdened) police to act as art critics, and potentially criminalizes wearing a bikini or a T-shirt without a bra.

These efforts–piously defended as necessary to “protect children”– crop up with regularity, and just as regularly are struck down by the courts.

Remember when Congress passed the Communications Decency Act, criminalizing the sending of “indecent” or “patently offensive” material to minors over the internet? In ACLU vs. Reno, he Supreme court held that the terms of the Act were unconstitutionally vague and overly broad, and thus violated the First Amendment. The Court emphasized that phrases like “indecent” and “patently offensive” were not clearly defined–indeed, were in the eye of the beholder–and that senders would inevitably be uncertain about just what was being prohibited. That uncertainty would create a chilling effect on lawful speech. The Court also pointed out that vague laws encourage arbitrary enforcement.

The Court compared that measure to “protect children” to burning down a village to roast a pig. I loved that metaphor, because that’s exactly what these culture warriors would be doing if their persistent assaults on the Bill of Rights were successful.

If there is one principle that pervades the Bill of Rights– one principle that animates our constitutional “village”– it is “live and let live,” the principle that, so long as we are not harming the person or property of someone else, we are each free to live our lives as we see fit. I think the majority of Americans are willing to live by that credo, but throughout our history we have had to contend with numerous moral scolds intent upon preventing others from engaging in behaviors and making life choices of which they disapprove.  Insisting that other people’s choices are “harmful to children” is the strategy they employ to justify imposing their beliefs on others.

Meanwhile, what is really harmful to children is poverty. Not having enough to eat. Not having a warm coat in winter. Substandard housing. When Ohio’s legislature fixes those harms, I’ll believe they actually give a rat’s patoot about children.

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Montana And Citizens United

Just in time for some good news for a change, Montana–of all places–has come through. Citizens in that state are preparing to vote on a ballot measure that would neuter the effects of Citizens United in that state. If it passes–and the odds are good–it would encourage similar efforts in other states. And given the national “popularity” of Citizens United (some polls show 75% of Americans opposed to it), plenty of other states would follow.

According to a report in the Prospect, which calls the initiative “ingenious,” the measure wouldn’t legally overturn the ruling– but it would negate its consequences. The proposal is titled “the Transparent Election Initiative,” and according to the description, it “wouldn’t affect corporations’ rights—which Citizens United extended to buying elections—but rather their powers, which are created exclusively by the individual states.”

As Harold Meyerson writes,

This argument—which, to the best of my knowledge, has never been tried before—is laid out in a brilliant paper that the Center for American Progress published last month. The paper’s author is Tom Moore, a senior fellow at CAP who previously served as counsel and chief of staff to a longtime member of the Federal Election Commission. Moore’s paper is exhaustive and complex, but his argument can be boiled down to simply this: All American corporations are chartered and given their powers by state governments, which means that state governments (or voters in states where initiatives and referendums can enact or change laws) can rewrite their charters to deny corporations the power to involve themselves in elections.

The paper to which Meyerson refers contained copious citations, but evidently all of them were in furtherance and confirmation of an 1819 ruling written by then-Chief Justice John Marshall, who wrote:

A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence … The objects for which a corporation is created are universally such as the government wishes to promote. They are deemed beneficial to the country; and this benefit constitutes the consideration, and, in most cases, the sole consideration of the grant.

Multiple court rulings also confirm the “unchallenged principle” that the states, not the federal government, have the authority to grant corporations their powers. Meyerson notes that in his opinion in the intellectually indefensible Hobby Lobby case, which endowed corporations with religious scruples that allowed them to avoid providing contraception coverage to their employees, “none other than Samuel Alito wrote that ‘the objectives that may properly be pursued by the companies in these cases are governed by the laws of the States in which they were incorporated.’

Furthermore, states have taken advantage of their power to amend their charters and have limited specific powers. In 1876, Texas removed banks’ power to issue bills of credit; in 1913, New Jersey limited the power of holding companies.

My initial reaction was “great–but what about Delaware?” As every corporate lawyer knows, thanks to its very corporate friendly laws, lots of companies that do business elsewhere are chartered in Delaware, which would be unlikely to follow Montana’s example. Meyerson says the paper addressed that concern, pointing to multiple court decisions holding that “foreign corporations”—that is, corporations chartered in other states– must comply with the laws of the states in which they do business. 

The ballot initiative rests on the distinction between powers (which are created by the states) and rights (which are protected by the Bill of Rights, and were federalized by the 14th Amendment). In Citizens United, the Supreme Court held that corporations’ free speech rights included the right to participate financially in elections. 

Kudos to Montana and here’s hoping for passage of the Transparent Election Initiative!

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The Supreme Importance Of Reforming The Supreme Court

The need to reform the Supreme Court has generated wide public debate due to recognition of the obvious (and I must say, shocking) degree of corruption of the current Court majority, but among political scientists and law professors, the need to reform the Court has been a topic for years. When I was teaching Law and Public Policy, I participated–mostly as a “lurker”–for some twenty years in a “Law and Courts” listserv, where scholars of the justice system and the courts discussed problems that long preceded the current Court, and argued about the merits of various proposals to mend those problems.

One significant issue was the diminishing number of cases the Supreme Court was able to decide annually–an issue that led to suggestions for various ways to expand the Court’s capacity, including the addition of judges. Another problem was that Americans live a lot longer now than they did when the Court was established, reducing turnover and raising the likelihood that some Justices would “serve” while senile or otherwise diminished. The most popular “fix” for that issue was a proposal to set term limits–eighteen years was a common proposition because it would be long enough to meet the goal of the Founders to shelter justices from political pressure and popular passion (which was the purpose of lifetime appointments), but short enough to minimize concerns about aging and turnover.

These academic discussions went on long before the elevation of obvious ideologues and political partisans to the highest court, refuting the arguments we hear dismissing the reform movement as ideological “court packing.” The growing recognition of the inadequacies of the current Court are just one example of the structural and systemic problems that have gotten us to the disastrous present. When and if we emerge from our Trumpian nightmare, the goal cannot be to restore what was. Structural changes will be essential–very much including to the Supreme Court.

In a recent post, Josh Marshall of Talking Points Memo made that point.

It’s not just turning things back to the status quo ante, as we’ve discussed. We’re in an era in which it’s critical to make major structural changes when the opportunity arises and build new structures that are more durable than the ones which have fallen so quickly over the last decade and specifically the last year. So you need smart people putting time into this work during the next three years, really thinking it through and having that list of reforms ready, support built them, etc.

That recognition brings us to the reason that Court reform is so critical. As Marshall points out, thoughtful people can identify numerous needed reforms, from the filibuster to the Electoral College to gerrymandering…the list goes on. But if we are dealing with a corrupt Supreme Court, those reforms are likely to be struck down. This Court has demonstrated that it can just manufacture pseudo-constitutional arguments for getting to the majority’s desired results. As Marshall wrote, “It’s really as simple as that. We’re now locked into public policy which fits an aggressive version of right-wing pseudo-constitutionalism and, even more, a jurisprudence aimed at keeping federal policy in line with the electoral and political interests of the Republican Party.”

The point is that the corruption of the Supreme Court is actually beginning to slow, disincentivize, detour policy work. It could not be more critical that people across the Democratic world — policy, law, electoral politics — have this realization. There’s no reason to accept a situation in which democratic self-government is only allowed now for Republicans.

We the People are gradually coming to recognize that we can’t fix our broken government unless we first fix the Court. And–as Marshall also emphasizes–not only must something be done about it, something can be done about it. “This isn’t like amending the constitution. It can be done. Get a trifecta, kill the filibuster and you can do it all on simple majority votes.”

And it really does have to be done, and not only for the reasons Marshall notes. When a Court deviates so profoundly–and so obviously–from adherence to precedent and established legal reasoning and analysis, citizens lose respect for the very concept of the rule of law. When they see the highest court in the land enabling government corruption and Christian nationalism, their belief in constitutional governance understandably evaporates, and rather than identifying as an American polity, the population devolves into tribes and factions contending for power and influence.

Reforming the Court should top our “to do” list.

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