Showing off his trademark bow tie (and famously polite demeanor), retired Supreme Court Justice John Paul Stevens this week again ripped into the Citizens United decision but disagreed with presidential candidate Hillary Clinton that overturning it should be a litmus test for a President when choosing Supreme Court nominees.
Justice Stevens made his comments on Tuesday at a George Washington University forum sponsored by Alliance for Justice and moderated by Slate's Dahlia Lithwick and the Washington Post's Jonathan Capehart. The conversation covered topics including the death penalty, voter photo identification laws, the religious and gender diversity of the bench, the Senate's confirmation process and the court's standing in the eyes of the public as an impartial arbiter of justice or a biased political body.
The opening question addressed Citizens United, the Supreme Court's 5-4 ruling in 2010 that corporations have a First Amendment right to spend unlimited amounts of money on politics.
Capehart sought Justice Stevens' reaction to using case-specific litmus tests to screen Supreme Court candidates. Last week, an attendee at a campaign fundraiser told the Washington Post that Hillary Clinton pledged not to nominate anyone to the high court unless she had assurances that they would vote to overturn Citizens United.
"I'm not really sure that that's wise either for the court or for a presidential candidate to make a litmus test on one particular decision. ... I'm surprised at her statement, and I'm surprised about the question" said Justice Stevens. "If I were running for President, I don't think I would make such a litmus test, even though I think the case ought to be overruled. There's no doubt about that. I took a few pages to make that point a few years ago."
The "few pages" Justice Stevens jokingly referenced made up his 90-page dissent to Citizens United. He wrote then that 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."
Justice Stevens shows no signs of mellowing or withdrawing his critique. It's "unfortunate" that Citizens United "and the later cases that followed it give the impression that people with a lot of money have more influence than the average citizen," he said Tuesday. "The basic principle of elections and democracy is 'one person, one vote.' Not 'a large number of votes for one person with a lot of money.'"
As for solutions to undue influence that comes with money in politics, Justice Stevens suggested that states could pass laws distinguishing between campaign contributions from a state's own residents and contributions from out-of-staters who have no right to vote in the state's elections.
Justice Stevens also suggested that debate on a proposed constitutional amendment to overturn Citizens United may prompt important changes in jurisprudence. "Even if a particular amendment is not adopted, I think putting it before the country as a whole and increasing attention to an issue, and debating it on the merits, may actually help change the law even if the amendment should not be adopted," he said.
Justice Stevens is on record in support of an amendment to overturn Citizens United and earlier campaign finance cases, including the foundational 1976 decision Buckley v. Valeo. In April 2014, days after the Supreme Court struck down the overall "aggregate" federal contribution limit in McCutcheon v. FEC, Justice Stevens was a witness in a Senate Rules Committee hearing chaired by Sen. Angus King (I-Maine). Justice Stevens testified in favor of a constitutional amendment to reverse the line of Supreme Court cases, beginning with Buckley, which conflated laws regulating unlimited political spending with the abridgement of speech.
Justice Stevens also was asked about the array of possible steps to improve the voting experience. His answer included a call for eliminating burdensome photo identification laws.
"I think they could get rid of - there's a vast difference between the constitutional issue and the political issue - I think they could get rid of excessive photo IDs [for voting] for example. It never made any sense. And I think that does have an impact on the process," said Justice Stevens.
His answer is notable because Stevens authored Crawford v. Marion County, a 2008 Supreme Court decision upholding the constitutionality of an Indiana voter photo identification law. Such laws have come under intense scrutiny as discriminatory, as studies show that at least one in 10 eligible voters lack the very specific form of identification that some jurisdictions are now requiring.
Tova Wang, a voting rights expert and author of "The Politics of Voter Suppression," said that "given his authorship in the majority opinion in the case upholding Indiana's voter ID law, it is extremely noteworthy that Justice Stevens now would appear to believe that laws like it are a serious barrier to the right to vote. It would be extremely valuable for him to now speak publicly on this, as Judge (Richard) Posner has, to make clear that voter ID laws -- that continue to be introduced and passed-- suppress the voices of many voters with no valid justification."
The only thing clearer than his statements at Tuesday's forum is that Justice Stevens, now 95, shows no sign of letting up any time soon.
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