Washington, D.C. -- The Supreme Court has just finished hearing oral arguments about whether it should overturn 102 years of precedent and rule that corporations have the same right to spend money to influence elections that citizens possess.
The Court stunned most observers back in June, when it asked for reargument in what seemed a small and narrow case: Citizens United v. the Federal Election Commission. At issue was whether the McCain-Feingold legislation, which banned corporate and union electioneering, also precluded a corporation from distributing a movie highly critical of a political candidate (in this case, Hilary Clinton). That's hardly an earth-shattering question, except to those involved.
But in asking for reargument in that case, the Court invited the publisher of the movie to make the case that Congress did not have the authority to limit corporate political expenditure, even though as far back as 1902, and as recently as 2006, the Court had upheld that authority.
Since the conclusion of the oral arguments, media coverage has focused on Chief Justice Roberts, who seems likely to be the swing vote. The four most liberal justices have made it pretty clear that they may not think Congress intended to ban making a movie, but they think corporate political expenditures of other sorts can be limited. However, three of the conservative justices (Scalia, Thomas, and Alito) plus usual swing voter Anthony Kennedy appear ready to open the floodgates to corporate dominance of political discourse.
The appeal being made to Roberts is that in his confirmation hearing he took a strong stand that the Court should not lightly overturn its own precedents. He presented himself as an incrementalist, a justice opposed to big changes in direction. You can argue whether Roberts has actually lived up to his judicial-restraint packaging, but a huge effort is underway to persuade him, in this case, to do so. Thus, in addition to a New York Times editorial urging a narrow ruling, the Times piled on Roberts with an op-ed by Jeffrey Rosen arguing that how Roberts handles this case would determine whether he goes down in history as another Chief Justice Marshall, Roberts's stated role model, or instead as a new Earl Warren, the chief justice whom conservatives demonize for judicial overreach.
It's true that judicial restraint ought to lead Roberts to a narrow ruling in this case rather than overturning a century of precedent. But what's striking is that no one is challenging the three most conservative justices -- yet it's their position on this case that's most contrary to their self-declared judicial philosophies. For Alito, Scalia, and Thomas are "originalists" -- justices who claim that it is not previous Supreme Court precedent that should govern, but instead the intentions and understanding of those who drafted the Constitution (and its amendments).
But the Citizens United case brings into stark focus the great, huge buzzing fly in the ointment of the originalists: They don't believe their own doctrine, not even vaguely. And as far as I can tell, this is almost universally true of those who wear the originalist banner.
Here's the problem: If you want to throw out what the originalists call "judge-made law" (interpretations of the Constitution that its drafters did not intend), then you don't get to throw out just Roe v. Wade on abortion, Baker vs. Carr on apportioning state legislatures, and Miranda on defendant's rights. You cannot board originalism like a trolley, ride it through the cases you don't like, and then get off back in 1953, when Earl Warren joins the Court, or even back in 1935, when the Court begins taking a more expansive view of Congressional authority to regulate interstate commerce.
No, if you want to argue originalism, you must also throw out all the judge-made law of the last half of the 19th century, too. And it is the cases of that era --cases that established that corporations have rights like individuals -- that Alito, Scalia, and Thomas are relying on to make their case for throwing out Congressional regulation of corporate political spending.
The key decision came in 1886, in Santa Clara County vs. Southern Pacific Railway. At the start of the case, the Chief Justice announced that the Court would not even hear arguments about whether the 14th amendment, guaranteed equal rights to all citizens, included corporations -- the Court simply declared that it did. In doing to, it ignored the well-established legal doctrine that once a state gave a corporation a privilege it constituted a contract that must be honored but also that the specific privileges granted came with its charter and did not extend beyond it.
Now this was judge-made law with a vengeance. It utterly upset the small-holder character of the original Constitution, with its deeply ingrained mistrust of corporations and other large economic institutions. But even after these cases, the Courts continued to rule that Congress and the states had the right to regulate some corporate political spending. (Indeed, in a 1978 case that restricted the right to limit corporate spending on ballot measures, Chief Justice Rehnquist dissented specifically because he did not feel that corporations were persons for purposes of political speech.)
Now what faces the Court in Citizens United v. the FEC is an effort to complete the judge-made revolution that begin in Santa Clara. Corporations would be granted not only the special privileges of their status (immortality, limited liability, protection from most criminal sanctions) but also the full range of political privileges of American citizens.
And Alito, Scalia, and Thomas don't acknowledge this enormous incompatibility with their purported judicial doctrine, and few in the media have challenged them on it. (Briefs have been filed with the Supreme Court raising this issue -- but they get barely any public notice.)
In the oral arguments, newly arrived Justice Sotomayor raised openly from the bench, for the first time in decades, the question of whether the original corporate personhood cases like Santa Clara were rightly decided. If the Court overreaches in this case, it may find that it has done the thing that Bob Dole used to say was always the worst error you could make in politics -- to kick a sleeping dog. Americans have, by and large, forgotten or never heard of the Santa Clara decision. Do Roberts, Alito, Thomas and Scalia really want to remind them?
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