Saturday, January 23, 2010

Supreme Court: Lessons from the Campaign Reform Decision


As if we needed a reminder--and astonishingly, some of us seem to need one periodically--the Supreme Court is not what we're usually told it is or is supposed to be. You know, what we're told by politicians, nominees, the Justices themselves, some who follow the Court and should know better, and grade school teachers.

Yes, grade school teachers. Because how they describe the Judicial Branch to our children is just about as sophisticated as what the others tell us about the Court's role and how it functions. Just think back several months to the laughably superficial and puerile debate about the Court during the Senate confirmation of Sonia Sotomayor.

Recall the Senators being utterly aghast that Sotomayor's background and experience might possibly affect her decisions, and that she might be a dreaded activist. Then there was her equally pitiable insistence that the Justices make no policy, make no law, but simply apply the already-existing law to the facts of a case.

Well, the Court's decision earlier this week was another pail of ice cold water thrown in the face of anyone who might have been snoozing and needed a wake-up call. Anyone who needed a fresh freezing dose of realism. Realism about the Court's politics, about the importance of appointments, about the nonsense of the judicial activism versus restraint debate, and about what the Court actually does.

First, just what did the Court decide earlier this week in Citizens United vs. The Federal Elections Commission? The Court held, by a 5 to 4 vote, that corporations may spend money--however, whenever, and how much they want--to finance ads supporting or opposing political candidates. That is their 1st Amendment right of free speech. Consequently, the restrictions contained in the McCain-Feingold Act on such corporate spending are unconstitutional.

Now, the lessons learned, or remembered.

The Court is Highly Political. And I don't just mean this in the Aristotelian sense that the Court is engaged in governance, in the determination and distribution of powers, rights and obligations. Hopefully, that at least is not in question.

I mean this in the partisan, ideological, polarized sense. The Justices were divided exactly as we would expect politicians in the Congress or the Senate or on the campaign trail to be. The 4 conservative Justices voted precisely the way conservative Republican politicians would; the 4 liberal Justices voted precisely the way liberal Democratic politicians would.

The 4 conservatives (Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito) voted in favor of corporate spending in politics. The 4 liberals (Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor) voted against such corporate spending. Political, ideological, polarized.

(The Justice who broke the tie was Anthony Kennedy. That's no surprise. He's, of course, the moderately conservative Republican on the Court who oftentimes is the swing vote. In this case, it was not surprising that he would be the swing vote, nor what his vote would be. Kennedy is as close as anyone on the current Court comes to being a free speech absolutist. He has consistently opposed restrictions on speech in a wide variety of contexts. Sometimes that means he votes with the conservatives [who favor some speech but disfavor others]; sometimes that means he votes with the liberals [the same]. Regarding corporate spending to express political views? Kennedy's vote in support was to be expected. That gave the more staunchly-conservative Justices the 5th vote they needed in this case.)

Appointments Count. President George W. Bush appointed Samuel Alito to fill the vacancy created by the retirement of Sandra Day O'Connor. The more moderately-conservative Justice O'Connor supported campaign finance reform. She voted that way--with the liberals--in prior cases while she was on the Court. Justice Alito, being a much more staunchly conservative Republican, is quite different. He opposes such goody-two-shoes liberal laws that place restrictions on how corporations and the wealthy can spend their money.

So Alito replaced O'Connor. Consequently, the balance on the Court changed, the majority shifted, and the Court's view on corporate spending in politics is the opposite of what it was. Just 1 appointment. Just 1 vote.

(As for President Obama's appointment of Sonia Sotomayor to fill the vacancy created by the retirement of David Souter, that was the replacement of one liberal with another. Justice Souter voted with the other liberals to support campaign finance reform while he was on the Court. Not surprisingly, Justice Sotomayor did the same in this latest case. Now if Souter had retired while President Bush was still in office, his replacement would surely have been a conservative. And the vote this past week would surely have been 6 to 3 rather than 5 to 4. Soooooo, it's also no surprise that Souter waited for Obama's election before he chose to retire.)

The Judicial Activism vs. Restraint Debate is Nonsense. The major debate in constitutional law over the past few decades has been the legitimacy of Supreme Court Justices being "activist"--i.e., invalidating laws passed by Congress or the states, breaking with settled precedents, broadly interpreting the Constitution, rendering expansive decisions, and making law from the bench. Conservative politicians accuse the liberal Justices of doing just that. (And, let's be honest, their accusations are accurate.)

Those politicians, and the conservatives on the Court as well, angrily denounce the liberal Justices' activist decision-making as contrary to the will of the people, contrary to the judgments of the people's representatives in the legislative and executive branches, contrary to democracy, and contrary to way in which the Court is supposed to function and (to be sure!) the way it used to function before liberal Justices started making political decisions rather than legal ones.

OK. Liberal Justices are activist. They have been so in the interpretation and enforcement of individual civil rights and liberties. Yes, like liberal politicians. That part of the denunciation is true.

What is sheer nonsense is the notion that liberal Justices are activist but not the conservatives. The notion that conservative Justices actually oppose activism, and it's only the liberals who favor it.

(There is also much nonsense about activism being illegitimate at all. What cherished liberties don't you want the Court to protect? Guns? Private property? Religion? Protesting, or supporting, health care reform? But that discussion is well beyond the focus here. [For more on that, see my "Judicial Activism...Conventional Wisdom and Nonsense," 68 Alb. L. Rev. 557 (2005), also available at])

Let's review what the conservative Justices did in the campaign reform decision. What those ardent proponents of judicial restraint, fierce opponents of judicial activism did. [And let me make clear that I support the outcome in the case. I support the right to finance a documentary criticizing a presidential candidate during the presidential primaries. Even if, as here, the documentary was against Hillary Clinton who I think is fabulous. What I don't support is the utter hypocrisy of denouncing judicial activism even while using it whenever it serves your own purposes.]

Here's what the conservative majority did--those arch enemies of judicial activism:

--overruled Congress. Yes, the democratically elected legislative branch of government passed the McCain-Feingold Act, and the Court declared that law's relevant parts invalid. The conservative majority substituted its judgment for that of the people's representatives. Instead of deferring to the lawmakers--an axiom of judicial restraint--the conservatives nullified the legislation.
And they did so even though the legislation was not clearly unconstitutional. Can it honestly be said that the legislation in this 5-4 case was clearly unconstitutional, as in beyond a reasonable doubt unconstitutional? That's the standard of judicial restraintists. Well, another one of their own axioms violated.

--overruled their own precedents. The Court overruled 2 recent decisions, and a full century of legislative and judicial tradition restricting the influence of corporate money in politics. The recent precedents, Austin v. Michigan Chamber of Commerce (2000) and McConnell v. FEC (2007), were explicitly overturned by the conservative majority because those decisions dictated the opposite result in the case. Those Justices also distinguished away or dismissed the rest of the century-old tradition. So much for stare decisis, for respecting precedent, for stability and predictability in the law. All axioms of judicial restraint violated.

--broadly interpreted the Constitution. The 1st Amendment protects free speech. That's what it says: speech. A strict interpretation of that, which is what judicial restraint calls for, would limit that to--well--speech. Not any conduct or activity that has expressive quality. Not wearing a black arm band or a peace button, not waving or burning the flag, not a dance or a musical composition, not a march or a parade, and certainly not spending money.
To be sure, all of those are expressive activities. But they're not speech.
Oh, don't be so narrow, so rigid, so strict. Hey, I agree. But that's not what the conservative politicians and Justices argue. They insist upon strict interpretation and condemn the broad sort. They insist upon sticking with the terms of the Constitution and condemn expanding what the provisions actually say. They insist on limiting rights to those set forth in the Constitution and condemn finding rights that are not clearly there.
Well, corporations spending money to finance political ads is not clearly in the Constitution. A strict interpretation of the term "speech" does not include spending money. Treating corporations as though they were actual human people is also not clearly in the Constitution. A corporation spending money to finance a political ad is not the same thing as a human person speaking about politics. That is hardly a strict interpretation of the 1st Amendment.
I may not have a problem with broad interpretations, but judicial restraintists do. And the conservative majority violated yet another one of their own axioms.

--made law. The !st Amendment expressly prohibits laws "abridging the freedom of speech." As of the Supreme Court's ruling this week, the 1st Amendment now prohibits as well, "abridging the freedom of corporations to spend as much of their money as they choose and whenever they choose to finance any communication supporting or opposing a political candidate." The conservative majority just added that.
That was not there before. Whether in the text of the 1st Amendment, or in the Court's prior decisions, or in the legislative history of the country. It was not there. But it is now.
The conservative Justices made law. Just what they complain about when the the liberal Justices do it. Just what they and their conservative political supporters denounce. In fact, just what everyone seems to denounce at those pathetic confirmation hearings.
That's another fundamental axiom of judicial restraint violated. Justices should just apply the law, not make it. Well, they just did.

So that's my humble take on the Citizens United decision. Again, for whatever it's worth, I agree with the result in the case. Like Justice Kennedy, I favor the freest possible political debate, and I'm opposed to virtually any governmental restrictions on the free exchange of opinions on politics--i.e., on governance itself.

I'm also delighted to have another vivid illustration of how and why the Justices actually decide cases. Another wonderful lesson in judicial realism.

What I continue to be appalled at, and what is pellucidly clear [had to use it!!] in this case, is what a fake the ongoing debate about activism versus restraint is, and how those Justices who rightiously condemn activism are so willing to be activist--and wildly so--when it serves whatever it is that they really believe.

[BTW, anyone wanting to see the gist of this on video should be able to find it at:]