Tag Archives: Supreme Court

Free Speech For Those Who Can Afford It

When John Roberts was elevated to the Supreme Court, my concerns weren’t focused on his likely conservative/ideological rigidity. (That was —and remains–my concern with subsequent Justices.) My “reading” of Justice Roberts was that he would instinctively side with power and authority–that he was likely to be pro-government and pro-business elite in situations calling for more searching inquiry into the equities involved.

I am not happy to report that my concerns were well-founded.

Roberts is solicitous when it comes to the rights of American elites. The defense of corporate “free speech” rights in Citizens United required an airy disregard of the foreseeable consequences of that decision for the electoral system. The opinion simply ignored the issue of disproportion, disingenuously equating the free speech rights of everyday citizens with the free speech rights of those who have massive resources at their disposal.

The problem began when the Court equated money with speech, and in Citizens United and several subsequent cases, it has steadily chipped away at McCain-Feingold restrictions meant to level the political playing field.

A few days ago, Len Farber reminded us of the quote from Anatole France that is perfectly applicable here: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

The most recent example of this sanctimonious and dishonest approach to the constitutional right of free speech came in a case brought by the odious Ted Cruz.

The case challenged a law limiting the amount of campaign funds that can be used to repay personal campaign loans to $250,000.  In a decision further weakening campaign finance regulations, the court held that a federal cap on candidates’ use of political contributions after an election to recoup personal loans made to their campaign was unconstitutional.

Roberts wrote the majority opinion, protecting the “free speech” rights of candidates with the resources to lend their campaigns enormous sums. Justice Elena Kagan cut through Roberts’ “free speech” pose to zero in on the real issue.

In her dissenting opinion, Kagan criticized the majority for ruling against a law that she said was meant to combat “a special danger of corruption” aimed at “political contributions that will line a candidate’s own pockets.”

In striking down the law today,” she wrote, “the Court greenlights all the sordid bargains Congress thought right to stop. . . . In allowing those payments to go forward unrestrained, today’s decision can only bring this country’s political system into further disrepute.”

Indeed, she explained, “Repaying a candidate’s loan after he has won election cannot serve the usual purposes of a contribution: The money comes too late to aid in any of his campaign activities. All the money does is enrich the candidate personally at a time when he can return the favor — by a vote, a contract, an appointment. It takes no political genius to see the heightened risk of corruption — the danger of ‘I’ll make you richer and you’ll make me richer’ arrangements between donors and officeholders.”

Even if we give Roberts the benefit of the doubt–if we assume that, from his lofty perch, he really doesn’t understand how the political “real world” works–it’s difficult to understand this decision. (Former Congressman Lee Hamilton used to say that the Supreme Court would benefit greatly from fewer Ivy League graduates and more Justices who had run for county sheriff–people who understood the gritty realities of political life.)

Cruz argued that “by substantially increasing the risk that any candidate loan will never be fully repaid,” the law forces a candidate to think twice before making those loans in the first place. The underlying assumption of his argument, of course, is that “serious”candidates for office are wealthy enough to self-finance their campaigns. This decision allows those wealthy candidates to do so without risking an actual loss of some portion of their funds, because they can now recoup the entire amount from post-election campaign fundraising.

As the Deputy Solicitor argued, the law “targets a practice that has significant corruptive potential.”

“A post-election contributor generally knows which candidate has won the election, and post-election contributions do not further the usual purposes of donating to electoral campaigns,” he said.

Campaign finance watchdogs supported the cap, arguing it is necessary to block undue influence by special interests, particularly because the fundraising would occur once the candidate has become a sitting member of Congress.

As one election law expert commented, “the Court has shown itself not to care very much about the danger of corruption, seeing protecting the First Amendment rights of big donors as more important.”

As an Atlantic  newsletter concluded: campaign-finance regulation in the U.S. has all but vanished.

This decision is more evidence–as if we needed it– of a Court that has lost its way.

 

 

 

 

Braun: Another Indiana Embarrassment

As if the election of a truly abysmal legislature, courtesy of gerrymandering , wasn’t bad enough, Indiana’s voters keep giving the state hugely embarrassing statewide officials. I have posted several times about Todd Rokita, Indiana’s widely-despised egomaniac Attorney General; currently, it’s intellectually and morally-challenged Senator Mike Braun who is reflecting negatively on Hoosiers.

The Washington Post was one of several media outlets reporting on Braun’s defense of “state’s rights” during the confirmation hearings for Judge Jackson.

Sen. Mike Braun (R-Ind.) said Tuesday that he would be open to the Supreme Court overturning its 1967 ruling that legalized interracial marriage nationwide to allow states to independently decide the issue.
 
Braun — who made the comments during a conference call in which he discussed the nomination of Judge Ketanji Brown Jackson to the Supreme Court — also said he’d welcome the rescinding of several key decisions made by the court in the past 70 years to pass the power to the states.

 Heather Cox Richardson had a historically-grounded response to Braun’s assertion that the country would be “better off having states manifest their points of view rather than homogenizing it across the country as Roe v. Wade did.”  As Richardson reminds us, the whole point of the 14th Amendment was to “homogenize” the fundamental rights of American citizens. 

After World War II, the Supreme Court used the Fourteenth Amendment to protect civil rights in the states, imposing the government’s interest in protecting equality to overrule discriminatory legislation by the states. 

Now, Republicans want to return power to the states, where those who are allowed to vote can impose discriminatory laws on minorities. 

Richardson points out that it’s impossible to limit an evisceration of the Fourteenth Amendment to a single issue. If states are empowered to award or deny rights as they wish –if they are free of federal restraints on their ability to strip reproductive rights from women, for example–“the entire body of decisions in which the federal government protects civil rights, beginning with the 1954 Brown v. Board of Education decision ending segregation in the public schools, is illegitimate.”

Voters need to realize that the GOP’s assault on fundamental rights goes well beyond efforts to overturn Roe. Tennessee Senator Marsha Blackburn has challenged  Griswold v. Connecticut, the decision that legalized contraception, and Texas Senator John Cornyn has attacked Obergefell, the decision recognizing same-sex marriage.

Braun and the other Neanderthals in the GOP would undoubtedly cheer such results. Most Americans, not so much. Richardson points out that they are “quite literally” making the same “states’ rights” argument used to justify enslaving people before the Civil War.”

More recently, it is the argument that made birth control illegal in many states, a restriction that endangered women’s lives and hampered their ability to participate in the workforce as unplanned pregnancies enabled employers to discriminate against them. It is the argument that prohibits abortion and gay marriage; in many states, laws with those restrictions are still on the books and will take effect just as soon as the Supreme Court decisions of Roe v. Wade and Obergefell v. Hodges are overturned.

Eviscerating the Fourteenth Amendment provision that prohibits states from withholding the “privileges and immunities” of U.S. citizenship from their citizens would invalidate the existing jurisprudence of Equal Protection, a jurisprudence that requires all states to respect the fundamental rights protected by the Bill of Rights–to “homogenize” them.

Richardson points out that Braun’s desired reversal of Loving v. Virginia would criminalize the marriages of both Judge Jackson and Justice Thomas in certain states.

Braun’s willingness to abandon the right of Americans to marry across racial lines was pointed, since Judge Ketanji Brown Jackson, whose confirmation hearing for her elevation to the Supreme Court is currently underway in the Senate, is Black and her husband is non-Black. The world Braun described would permit states to declare their 26-year marriage illegal, as it would have been in many states before the 1967 Loving v. Virginia decision declared that states could not prohibit interracial marriages. This would also be a problem for sitting justice Clarence Thomas and his wife, Ginni.

Braun is today’s version of  a mainstream Republican, and Richardson revisits a frequently-quoted paragraph written a decade ago by respected scholars Thomas Mann and Norm Ornstein, who concluded

“The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition. When one party moves this far from the mainstream,” they wrote, “it makes it nearly impossible for the political system to deal constructively with the country’s challenges.”

So we’ve seen–and it has only gotten worse.

These days, as the Jackson hearings are painfully illustrating, Republicans have made both civil discourse and  basic, substantive governance virtually impossible.

 

State’s Rights

The importance of appointments to the Supreme Court isn’t limited to the issue of abortion, or to questions whether “religious liberty” protects the right to discriminate against gay people or refuse to be vaccinated, even when that “liberty” demonstrably harms others.

Thanks to Mitch McConnell, the Court now has at least four current Justices who appear ready to erase over a hundred years of precedent in order to protect the GOP’s electoral advantages. If the Court ultimately decides to ignore most of the jurisprudence that followed and applied the 14th Amendment, returning the United States to a decidedly ununited  status under the rubric of “states rights,” it won’t take long before we inhabit a country that most Americans won’t recognize.

And that country will not be a democracy, if by “democracy” we mean majority rule limited only by the Bill of Rights.

The Court recently denied efforts by Republicans from Pennsylvania and North Carolina to overturn lower court decisions that found redistricting maps favoring Democrats were fairly drawn. The immediate result was positive (or negative, depending upon your political preferences) and most people didn’t read beyond the headline. If they had, they would have seen a chilling  dissent filed by four right-wing justices who supported the Republicans’ argument that state legislatures have ultimate power to determine their own voting procedures, including the selection of presidential electors.

This–as several commentators have noted–is the old state’s rights argument.

If a state’s legislature can determine who gets to vote, or how votes are to be counted and by whom, states like Indiana that have already been gerrymandered to ensure Republican super-majorities can pass laws that further disenfranchise Hoosiers who disagree with their agenda, no matter how extensive that disagreement may be. (We saw the outlines of that agenda in the recently concluded session; Republicans and police officers opposed the bill that eliminated the requirement of a permit to carry a gun.It passed anyway. And  Republicans in the legislature have already asked the governor to call a special session to outlaw abortion if–or when–this Supreme Court strikes down Roe v. Wade.)

As historian Heather Cox Richardson recently reminded readers, in 1868, it was this very concept of “states rights” that Congress overrode with the Fourteenth Amendment–an amendment that the states subsequently ratified.

As others have noted, with appropriate alarm, at least four of the current Supreme Court justices have confirmed  that they are ready to support this independent state legislature theory. That support requires what one pundit has accurately called  “a radical reading of the Constitution that imbues state legislatures with total control over election and voting rules, and redistricting.” 

The Supreme Court has already denied the federal courts authority to overrule partisan gerrymandering. If it endorses the independent state legislature theory, that would bar state courts from doing so as well.  As the linked article summarized the situation,

f enough justices embrace this theory, it’ll give state legislatures — which skew Republican thanks to down-ballot investments and aggressive gerrymandering — free rein over redistricting, voting rules and, most disturbingly, elections. 

“It is effectively an avenue to free state legislatures from the supervision of state courts, which play a critical check and balance on the power of those legislatures,” Daley added. “All you have to do is look at state legislatures around the country to get a really good sense of what the future would look like if these legislatures are free to enact election law with impunity.”

An embrace of that theory by the Supreme Court would further exacerbate the divisions between Red states and Blue states; as the old saying goes, what’s sauce for the goose is also sauce for the gander. Many years ago, political scientist Theodore Lowi traced the resistance of local political pooh-bas to the 14th Amendment’s application of the Bill of Rights to state and local units of government. The result of that application, of course, was to create an American identity–to assure citizens that they would have the same basic rights if they moved from State A to State B.

Make no mistake: empowering state legislatures under this radical theory wouldn’t simply entrench political parties and eviscerate the 14th Amendment. It would be a retreat in the direction of the Articles of Confederation.

 

 

A Damning Critique

When a noted Constitutional scholar and a retired federal judge jointly issue a damning critique of the current Supreme Court, the particulars of that criticism are worth considering.

Lawrence Tribe and Nancy Gertner have co-authored such an essay for the Washington Post.

Tribe, as Americans who follow such matters know, is a highly respected constitutional scholar who taught at Harvard; Gertner is a retired federal judge. Both served on Biden’s Commission charged with reviewing the operations of the Supreme Court , and both now endorse the (longstanding) scholarship advocating the addition of Justices. Interestingly, they write that they entered the Commission’s deliberations with different preferences for addressing the Court’s declining legitimacy–initially, both had favored term limits but not expansion.

They changed their minds.

After serving on the Presidential Commission on the Supreme Court over eight months, hearing multiple witnesses, reading draft upon draft of the final report issued this week, our views have evolved. We started out leaning toward term limits for Supreme Court justices but against court expansion and ended up doubtful about term limits but in favor of expanding the size of the court.

In their essay, they explained that their vote in favor of the final report did not signal  agreement with all of it, but approval of the process, which they note accurately reflected the complexity of the issue and the diversity of views.

There has never been so comprehensive and careful a study of ways to reform the Supreme Court, the history and legality of various potential reforms, and the pluses and minuses of each. This report will be of value well beyond today’s debates.

In two paragraphs that sum up not just the opinions of these two experts, but–sadly–the all-too-obvious reality of where we find ourselves today, they accurately pinpoint the defects of today’s Court and the impact of those defects on efforts to remedy America’s ills.

But make no mistake: In voting to submit the report to the president neither of us cast a vote of confidence in the Supreme Court itself. Sadly, we no longer have that confidence, given three things: first, the dubious legitimacy of the way some justices were appointed; second, what Justice Sonia Sotomayor rightly called the “stench” of politics hovering over this court’s deliberations about the most contentious issues; and third, the anti-democratic, anti-egalitarian direction of this court’s decisions about matters such as voting rights, gerrymandering and the corrupting effects of dark money.

Those judicial decisions haven’t been just wrong; they put the court — and, more important, our entire system of government — on a one-way trip from a defective but still hopeful democracy toward a system in which the few corruptly govern the many, something between autocracy and oligarchy. Instead of serving as a guardrail against going over that cliff, our Supreme Court has become an all-too-willing accomplice in that disaster.

The essay accuses today’s Court of operating to entrench the power of one political party  by upholding measures to constrict the vote and deny ballot access to people of color and other minorities, and by “allowing legislative district lines to be drawn that exacerbate demographic differences”–i.e., refusing to hold gerrymandering unconstitutional.  And they note that, absent intervention, a Supreme Court that “has been effectively packed”  “will remain packed into the indefinite future, with serious consequences to our democracy.”

This is a uniquely perilous moment that demands a unique response.

The concluding paragraphs are worth pondering and– if the political will can be mustered (a critical unknown)–acted upon.

Though fellow commissioners and others have voiced concern about the impact that a report implicitly criticizing the Supreme Court might have on judicial independence and thus judicial legitimacy, we do not share that concern. Far worse are the dangers that flow from ignoring the court’s real problems — of pretending conditions have not changed; of insisting improper efforts to manipulate the court’s membership have not taken place; of looking the other way when the court seeks to undo decades of precedent relied on by half the population to shape their lives just because, given the new majority, it has the votes.

Put simply: Judicial independence is necessary for judicial legitimacy but not sufficient. And judicial independence does not mean judicial impunity, the illusion of neutrality in the face of oppression, or a surface appearance of fairness that barely conceals the ugly reality of partisan manipulation.

Hand-wringing over the court’s legitimacy misses a larger issue: the legitimacy of what our union is becoming. To us, that spells a compelling need to signal that all is not well with the court, and that even if expanding it to combat what it has become would temporarily shake its authority, that risk is worth taking.

 

 

Ruth Marcus Schools The Court

A recent opinion column by Ruth Marcus is really a “must read” by anyone who thinks that the absence of a specific provision in America’s constitution is evidence that the document is “neutral” about an issue.

Marcus’ essay focuses on reproductive rights, but her explanation of the Constitution’s operation extends well beyond abortion. Although she doesn’t put it this way, what she is really exposing is the fact that judges who call themselves “originalists” are actually revisionists who use the absence of a particular word in the text to justify a preferred, distinctly unoriginal interpretation of the Bill of Rights.

The argument–which was on display during oral arguments in Dobbs v. Jackson- is that, absent express constitutional language, an issue must be left to “the people.” As Marcus points out,

The fundamental flaw here is that the Constitution exists in no small part to protect the rights of the individual against the tyranny of the majority. The Bill of Rights and the 14th Amendment exist to put some issues off limits for majority rule — as Justice Robert H. Jackson put it in a 1943 ruling protecting the right of Jehovah’s Witness schoolchildren not to be forced to salute the flag, “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.” The Supreme Court, in protecting abortion rights, isn’t telling women what to do: It is preserving space for them to make their own decisions about their own pregnancies.

She also notes the highly selective application of the “leave it to the people” approach.

They’re happy to second-guess the decisions of elected officials and public health experts about how best to safeguard their communities in the midst of a pandemic when religious institutions claim their rights are being violated. They don’t flinch at saying that the core First Amendment protection for political speech places strict limits on Congress’s ability to limit corporate spending on elections or enact other campaign finance rules.

What this disingenuous argument rejects is the whole purpose of the Bill of Rights (the Founders’ actual “original intent”)–which was to keep government from invading the fundamental rights of the people to personal autonomy–the right to self-government. A reading of the history of the too-frequently overlooked Ninth and Tenth Amendments makes clear that “unenumerated” rights were among those to be protected.

When people argue that the right to privacy is not protected from government overreach because the word “privacy” doesn’t appear in the document, they conveniently ignore the reality that without recognizing a zone of privacy, it is impossible to give effect to very explicit provisions of the First, Third, Fourth and Ninth Amendments (not to mention the 14th, which was ratified after the Civil War.)

When the Supreme Court decided, in Bowers v. Hardwick, that the Constitution didn’t protect a right to homosexual behavior, because such behavior was not addressed in the document, legal scholars–and a later Court–addressed the fundamental error in that analysis: It had inverted the question. Where in the Constitution or Bill of Rights is government given authority to tell people who and how they can love?

The question is always: who gets to decide this matter, government or the individuals involved? The Bill of Rights answers that question by enumerating things government is forbidden to do. It cannot censor our speech, decide our religions, search our homes or persons without probable cause, or take a variety of other actions that invade an individual’s right to self-determination (the Constitutional definition of privacy).

As Marcus reminds readers,

There are any number of rights that the court has long found fall within the bounds of constitutional protection even though they are not specifically mentioned in the text. The right to travel. The right of parents to educate their children as they choose. The right to contraception. The right to private sexual conduct. The right to marry a person of another race. The right to marry a person of the same gender.

All these derive from the intentionally broad phrases of the 14th Amendment’s protections against the deprivation of “liberty” without due process of law. “The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution,” Justice John Harlan, no liberal, explained in a 1961 dissent, from an early case involving access to contraception.

If a woman’s right to control of her own body doesn’t have constitutional protection, then logically, none of the rights Marcus enumerates are protected either–and the intellectually dishonest “religious” conservatives on the Court are quite capable of coming for those rights in the future.