June 15, 2010

With all of our attention riveted on who was winning or losing public offices, we might have missed the most alarming thing that happened on California’s
Election Day.  And it didn’t even happen in California.

On June 8, the U.S. Supreme Court issued a stunning emergency order blocking Arizona from fully implementing its Clean Elections Law for its Aug. 24 primary election.  Passed by voters in 1998, the Arizona law offers public funds to candidates who accept a spending limit.  But if a privately financed candidate exceeds spending bya set amount, publicly funded candidates can receive more matching funds. The Court’s emergency order prevents Arizona from paying the promised matching funds to qualifying candidates on June 22, thereby crippling their ability to compete on a level playing field.  This makes clear that the majority of the Supreme Court now feels empowered to intervene in an ongoing campaign before even formally considering the issues involved in the case. 

The primary will be over by the time the full Court takes up the case in earnest in the fall, but the Court’s ultimate position on the matter remains unclear. Perhaps the Court’s majority already has the votes in the bag, although prior to the order, Justice Anthony Kennedy insisted that it not be issued unless there was an intention to debate the issue in the Court.  Perhaps he remains undecided.  The Court could adopt the position of the right-wing Goldwater Institute and the Institute for Justice that bolstering candidates who receive public funding to match up with privately funded candidates “chills” the free speech of the wealthier candidates.  Following that argument, well-funded candidates might feel compelled to spend less money if such spending would just trigger more money for their opponents.  The federal Court of Appeals scoffed at this argument, but the Supreme Court seems likely to be more sympathetic.

Two years ago, the Court overturned a portion of the McCain-Feingold Law (the “millionaire’s amendment”) that allowed candidates in a federal election in New York state to raise money beyond contribution limits if self-funded candidates spent beyond set limits.  With the Arizona case, the Supreme Court may now feel free to overturn state laws.

In the Citizens United case in early 2010, the Court expanded on the concept that corporations are, like “persons,” entitled to free speech protection.  That decision is expected to open the door for
corporations, and possibly labor unions, to spend at will in independent campaigns.  The Supreme Court majority seems to believe that the threat to the free speech of private entities through limits
imposed by public entities is a bigger problem in American political campaigns than the threat of an outsize role of private interests.

We should be alert by now to the willingness to upset precedent by the five-member majority, as well as to adopt marginal legal theories from outside the mainstream and legislate their own political opinions into law.  In that sense, Bush v. Gore was just the tip of the iceberg and a warning of things to come.  There, the then-majority (including Sandra Day O’Connor and William Rehnquist) blocked a recount under way in Florida by adopting an argument made by the Bush camp that until then no one had taken seriously:  that equal protection claims applied to the recount but not the election itself. The majority used this rationale, which it stated applied only in this one case, to reach its preferred conclusion:  installing a Republican in the White House.

Since then, two truly radical justices (Samuel Alito and Chief Justice John Roberts) have replaced O’Connor and Rehnquist.  While Kennedy is at times a swing vote, he has usually joined the majority.  The other four —  Alito, Roberts, Antonin Scalia and Clarence Thomas — represent the hard core.

What can we do about this?

We must all obey the law. But the Court’s unfettered moral authority to say what the law is has always been contested. The Court is a political branch. Don’t let the robes fool you.  While the current majority may clothe itself in the protective covering of the Court’s distinguished history, its decisions can be challenged in the court of public opinion and overridden by Congress.
While the Supreme Court would love to be above the political battle, its decisions are not magically imbued with wisdom.  The justices do not like to be criticized, as shown by Alito’s response when the famously conciliatory Obama called them out for the Citizens United decision in front of Congress and the nation.

Presidents have changed the Supreme Court by challenging it.  Franklin Roosevelt called them the Nine Old Men when they overturned key provisions of the New Deal and proposed the famous “court packing” plan.  The plan failed, but the Court changed its rulings in FDR’s direction.  Nixon challenged the Warren Court as too liberal, setting the stage for a new Court direction.   

There also will be constant efforts to separate Justice Kennedy from the conservative wing on particular issues. Keeping the lines of argument open to this one justice will prevent those who criticize the Court from going overboard and losing his ear.

Dissent is a powerful tool for the outvoted minority on the Court to rally public opinion to its side. There is a long and distinguished tradition of Supreme Court dissents, aimed as much at the people as at the legal community.  While the majority may not be swayed by argument, the larger community might be.  The demoralized minority on the Court should consider how to act instead like a principled and outvoted minority.  Their dissents should be bold and readable.

Can anybody quote a dissent from Bush v. Gore?  The boldest statement was Justice Ruth Bader Ginsberg’s omission of the word “respectfully” from her submitted dissent.  Perhaps somebody should have written in 2000: “Today the United States Supreme Court openly enters the campaign arena, adopting a legal justification as a convenient fig leaf to install the majority’s preferred candidate. Nothing is more shameful than the blatant partisan interference that the majority has adopted.  Nothing will do more to damage the credibility of this Court as a fair umpire in American democracy.”

In the Citizens United case, the soon-to-retire, 89-year-old Justice John Paul Stevens showed how it should be done:

“… corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their ‘personhood’ often serves as a useful legal fiction. But they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.

“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.”

Raphael J. Sonenshein is chair of the Division of Politics, Administration and Justice at Cal State Fullerton.