Last week, investigators at the Center for American Progress released a bombshell, making public confidential materials penned by energy tycoon Charles Koch for a conference of well-heeled conservative activists this past June. These materials also included an invitation to far-right money men and women to another gathering scheduled for next January, to plan the takeover of the White House in 2012.
While helping reveal the right's political agenda, these materials also show just how central the courts are to their plans. For one surprising example, two names topped the list of luminaries who had previously attended Koch's gatherings: Supreme Court Justices Antonin Scalia and Clarence Thomas. Furthermore, consider the Chamber of Commerce, and the topic for discussion they chose for Koch's gathering this past June. In the middle of a heated battle over the control of Congress -- a fight that has crystallized the Chamber's status as a leading financier of conservative causes -- the Chamber chose to speak about the opportunity to win judicial elections and capture the state courts.
This laser-like focus on the courts is missing on the left, which is far more focused on winning elections and legislative battles. But what if those legislative victories are overturned by the activist rulings of conservative judges? That is already happening in cases such as Citizens United v. FEC, where last January the Supreme Court gutted by a 5-4 vote the McCain-Feingold Bipartisan Campaign Reform Act -- a law that progressive funders and activists had spent more than a decade mobilizing to produce.
Citizens United is hardly an isolated example. In June, in the wake of Citizens United, the organization I head, Constitutional Accountability Center, comprehensively examined cases decided by the Supreme Court in which the Chamber of Commerce filed briefs since Justice Samuel Alito began participating in decisions in early 2006. Over this nearly five-year period (through the end of June 2010), the Chamber prevailed in 68 percent of its cases. The Chamber was even more successful in the October 2009 Term, winning over 80 percent of its cases (13 victories in 16 cases). Our study also demonstrated a pronounced ideological divide on the Court on Chamber positions: the Court's conservative majority (Chief Justice Roberts and Justices Alito, Kennedy, Scalia, and Thomas) collectively voted for the Chamber 74 percent of the time while the Court's moderate/liberal bloc (including former Justice David Souter, who was on the Court for most of these rulings) was more centrist, collectively casting 43% of its votes in favor of the Chamber.
The response to our June study, even among many liberals in the Washington legal community, was muted. Indeed, Justice Breyer -- who voted for the Chamber less than half the time in our June study -- came to the Chamber's defense, telling Bloomberg News that the Chamber's recent success before the Court was nothing new because the Chamber has always done well before the Court.
A follow-up study released today by Constitutional Accountability Center demonstrates that to be flat wrong. CAC studied the 5-year period immediately before any of the members of the Court's current conservative majority took the bench. During the five Supreme Court Terms from October 1981 to June 1986, the Court ruled in the Chamber's favor just 43% of the time. Even more striking was the lack of any comparable ideological divide on the Court during this earlier era. For example, the voting records of then-Justice William Rehnquist, widely viewed as the most conservative member of the Court of that era, and Justice William Brennan, its most liberal member, differed by only three points in support for the Chamber -- 47% compared to 44%, respectively. Rehnquist and Brennan waged heated battles over hot-button social issues such as reproductive choice and affirmative action, but they did not battle often over the law's impact on corporations.
Not surprisingly, the Justice voting most often in favor of the Chamber in our earlier study was Lewis Powell. Justice Powell was a moderate on social issues and the Burger Court's swing Justice on those topics. But he had also represented the Chamber of Commerce in private practice and penned a now famous 1971 memorandum instructing the Chamber to take advantage of a "neglected opportunity in the courts."
For the past 40 years, the Chamber of Commerce and its allies have taken to heart Justice Powell's advice and worked tirelessly and step-by-step to push for a judiciary that is sympathetic to its legal arguments. How sympathetic? Consider that during the period of our 1981-1986 study, Justice Powell -- the most pro-Chamber judge of his era -- voted with the Chamber 59 percent of the time. His replacement, Justice Anthony Kennedy -- the most moderate member of the Roberts Court's conservative wing -- voted with the Chamber 69 percent of the time during the period of our study of the Roberts Court.
There has been a ton of coverage this election season of the Chamber of Commerce's undisclosed donors and multi-million dollar expenditures on Congressional races across the country. But the Chamber's efforts in the judicial arena have remained largely underneath the radar. This imbalance of attention is unfortunate, because while the success of the Chamber's attempt to influence the mid-term election remains to be seen, we already know that the Chamber's decades-long effort to influence the judiciary has been a resounding success.
Follow Doug Kendall on Twitter: www.twitter.com/myconstitution
And there's the crux of it: Americans believe the Democratic party is on the left, but it isn't. There is NO party on the left in American politics (what real lefties would support 43% of what the COC says??)
As for activist judges, this is one of the most activist Courts in modern history and it has been actively pushing America's laws to the right. The idea of activist left-leaning judges is popular among Republicans (who attack anything - even the constitution and the Courts - in the way of their hard-right agenda), but they simply don't exist in America right now.
You're right, though, the voters need some input on who our sitting justices are.
Let's build a movement so we can have a true progressive president! End corporate control! More democracy, and less corporatocracy.
The Alamo has become its own horseless rider.
I wonder why. Do you have a source for this alleged Wal-Mart case? Lawyers were stupid enough to say that in front of witnesses?
I think it's less important that the Texas Supreme Court is Republican and more important that they're corporatocratic. There are Republicans and Democrats who are against the hostage taking of our government by Big Money. There are Republicans and Democrats who are for it. We have to unite across party lines to fight it. We have to figure out who our real allies are.
As a very concerned American Citizen, can anyone please tell me, I am within my rights to request my duly sworn and elected govt officals to move to investigate articles of impeachment against the Roberts Court?
Pink One Demands Impeachment Trails of the Supreme Court Justices in the United States of Corporations! because "We, the People" Demand Our Democracy be Restored, to "We, the People" of the United States of America!
American Citizens Unite - "We, the People" will not allow American Democracy to be SOLD TO in the name of SHAREHOLDER VALUE JUSTICE ROBERTS!”
1) Corporations have enjoyed constitutional rights since 1876.
2) The court ruled that MONEY spent to influence elections was a protected form of free speech. That was in 1986. Google Buckley v Valeo to see what a liar we have in the White House. The guy TAUGHT constitutional law!! To whom?
3) It's also a lie to claim that Citizen's United overturned a century of legal precedent, as reported in the New York Times -- not Glen Beck, the New York Times. http://opinionator.blogs.nytimes.com/2010/01/27/justice-alitos-reaction/
4) My favorite source of all. Citizen's United was supported in an amicus brief by those crazed rightwingers at ... the ACLU! http://www.aclu.org/free-speech/citizens-united-v-federal-election-commission
The ACLU. The New York Times. Buckley vs Valeo. Anyone launching an impeachment action will look as ridiculous as President Obama did.
You're being manipulated by hysteria -- just like the Birthers, That's the price one pays for blind-faith partisanship - either party, liberal or conservative, they all lie. It's about power. Don't be a pawn.
"Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
“The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.”
“At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics."
The BCRA may have limited free-speech; however, Roberts, et al, took it upon themselves to extend the CU case to include overturning a hundred years of jurisprudence. Similarly, justice Roberts, et al, also over-reached in their 2000 decision in Bush v Gore. These are, in many people's eyes, acts of warring against the Constitution. For which, the justices should be disbarred, and formally charged with treason.
This must be what Sharron Angle meant when she inadvertently mentioned the "Second Amendment Solution". Maybe she spoke out of turn, or too soon. This whole blitz by the NRA was planned all along, and she let the cat out of the bag. So, we have the NRA buying votes right alongside the Plutocrats. Is this some kind of cleverly camouflaged military junta?:
"A military junt is a government led by a committee of military leaders. The term derives from the Portuguese and Spanish languages junta meaning committee, specifically a board of directors. Sometimes it becomes a military dictatorship, though the terms are not synonymous."
i.e. let me send my money anywhere in the world I want. No barriers or controls on how money can move around the globe.
AT THE SAME TIME, they want to INCREASE the regulations and laws on the ability of PEOPLE to move about the planet for economic opportunity.
In other words, money should be 'free" to chase cheap labor that is trapped. All this talk about china...the conservative rich LOVE china.
They say that the Devil cannot steal your soul. You give it away willingly. As I watch all of the Conservatives in the conga line being led by the Devil, I will be on the sidelines, clapping to keep the beat of the music. He promises a warm reception.
7-2 instead of 5-4.
And liberals really don't get it when it comes to the courts.
The liberal attitude always seems to be "we don't want to be like them." As if some how the nobility and purity of one's ideas is all that is needed to win the day. Liberals wretch at the thought of having to put down the glass of white zin and pick up the protest sign and man the ramparts and monitor the polling places and confront the enemies of America who think it is their country and their's alone.
Do they vote that way because they get money or did they get the money because they voted that way
It's time the country wakes up to the fundamental threat to democracy posed by the CoC, the Koch brothers and the Federalist Society. There is no more corrupting influence on government, its institutions, and danger to democratic society, than the combined forces of this far right juggernaut.