On the Supreme Court

by Jackson Dave

Provision for our Supreme Court occupies three short sections, approximately ½ page of our short constitution. The document is specific as to the court’s function and jurisdiction. With few distinct guidelines, the court relies upon tradition or precedent for guidance.

Until now.

Precedent, which has dominated the proceedings of the court for generations, has dictated that the body, which represents 1/3 of the government, and a crucial part of its checks and balances, be non-partisan. While “politics as usual” tends to dominate the other two branches, the court was to be above the fray and “keep the children from frivolous excess.”

Until now.

The court is the last bastion of protection for minority interests and the oppressed.

Until now.

To further protect the impartiality of the body, the court does not pick and choose which cases or subjects that it wishes to rule upon; The Solicitor General does this.

Until now.

Integrity of the court rises from the integrity of those appointing its officers, namely our presidents. The Senate is supposed to be the watchdog over dubious appointees, but the process begins with the president. History of the court has shown that it has carried such extreme gravity as to soften partisan voices. Known conservatives, such as former California Republican Governor Earl Warren, have become outspoken voices for liberal values. The reverse has also been observed over the years.

Until now.

Recent cracks began to appear in this fabric in 1987 when Ronald Reagan nominated Robert Bork. Bork was an outspoken advocate for “original intent” and “conservative values”, whatever those might be, and was the first nominee ever opposed by the ACLU. Six of 58 Republican senators joined the opposition.

Next, Thurgood Marshal, the first African American to sit on the bench, retired in 1990. In a cynical gesture, George H. W. Bush nominated Clarence Thomas to replace him. Thomas was a known, radical "conservative", committed to turning back the clock on civil rights, as though his own social and professional status, gained through positive action and quotas, would be tarnished by others following in his path. Thomas opposed all that Marshal had stood for in a distinguished career; but he was black. He had been a judge for only one year, and had produced no written decisions or briefs. Furthermore, outraged that her tormentor had been nominated for the bench, Thomas was accused by Anita Hill, a co-worker, of sexual exploitation on the job. The nomination produced a circus of televised hearings that clouded the entire proceeding. Thomas survived the hearings with strong opposition from Democrats and two dissenting Republicans.

With this as rationalized provocation, Republicans have taken the ball and run with it, as only Republicans can, by subsequently opposing every candidate proposed by Democratic presidents on partisan terms.

The culmination of partisanship reached a climax in December 2000 when the United States Supreme Court interceded in national election procedures in the state of Florida by overruling a re-count, mandated by the Florida Supreme Court, of a clearly tainted vote. Since the constitution dictates that each state will conduct its own proceedings, this was a clear violation of precedent and the constitution. On a strictly partisan divide of 5 Republican-appointed justices against the 4 others, the court blocked the re-count, effectively appointing George W. Bush to the presidency, over-riding the popular vote and the likely electoral selection of Al Gore.

Moving forward eight years, we find a new president elected by a significant majority of voters. Behind the result was the unprecedented force of a large, “grass-roots” movement of regular citizens, financing the election through donations of $10 to $200. To many, this would appear to be the very flower of democracy in action. Conservative (“original intent”) hearts should swell with pride over the success of this movement. But no. The election brought us a Democratic president.

Hence, the Supreme Court handed down an opinion in the Vanguard Church decision that opens the door to unlimited campaign contribution from corporations. The implications of this decision are staggering, given that most observers believe that excessive money in the campaign finance is already undermining our political system. Beyond that, it now becomes the fiduciary responsibility of every corporate officer to plunge forward with all available financial resources to direct the course and success of their company through political means. Given the excessive gravity of corporate influence through a variety of channels, this has the promise to sweep away completely the will of the people.

The ruling, Citizens United v. Federal Election Commission, No. 08-205, overruled a number of precedents going back 100 years, plus two recent precedents: Austin v. Michigan Chamber of Commerce, a 1990 decision that upheld restrictions on corporate spending to support or oppose political candidates, and McConnell v. Federal Election Commission, a 2003 decision that upheld the part of the Bipartisan Campaign Reform Act of 2002 that restricted campaign spending by corporations and unions.

So what are the implications of this decision on our court?

First, granting corporations equal voice with people is a huge stretch of “original intent”. Virtually no one proposes that Jefferson and the framers championed corporate civil rights. It violates original intent, if not the constitution.

Second, there is a long precedent of denying corporations all but very limited access to direct, legal involvement in our political process. Half the states have strict restrictions on corporate influence, which will be swept aside. This decision comes from total contempt of precedent, from a Republican majority which claims to champion this cause. In his confirmation hearings, Chief Justice Roberts repeatedly invoked the sanctity of both original intent and precedent. This is sheer hypocrisy, if not arrogant disregard of the law by our most hallowed legal body.

Third, the court’s traditional cause of protecting the minority and oppressed is obliterated. Corporations already have by far the loudest voice in our political process. This decision amplifies their voice to further drown out that of the people.

Finally, this decision did not come from a case submitted by the Solicitor General. The Vanguard Church case involved a specific movie, Hillary, the Movie, that was produced to influence the 2008 election. As Ms. Clinton failed to carry the Democratic nomination, the movie became superfluous. But the court stepped out of the context of this case to make a decision of its own choice on our political process that will cast a shadow over all elections to come.

Republicans (who support this decision, of course) contend that it’s fair, and balanced by the provision that labor has also been granted this prerogative. This is a smoke-screen, given that the financial resources of industry dwarf those of labor.

To this “unbiased” eye, it appears that the court has moved to counter the emergence of widespread citizen involvement in the election process that gave us a Democratic president. Our Supreme Court has made a move to unhinge democracy (rule by the people) on behalf of plutocracy (rule by the few and the powerful, on behalf of the few and the powerful.)

In short, the Supreme Court has run amok. It has become an agent of the Republican Party, and has acted in response to a citizen movement to remove Republicans from power, as occurred in the executive and legislative branches. The court has taken this step in response to the threat of the loss of their majority on the bench at the hands of President Obama.

Chief Justice John Roberts, appointed by George W. Bush after he withdrew the nomination of Harriet Miers, whose qualifications seemed laughable even to large numbers of Republicans, has proven to be the voice of the contemporary Republican Party. In five years on the bench, Roberts has decided for the prosecution over the defense, for the state against the condemned, for the executive branch over the legislative, for a corporate defendant over an individual, in every case put before the bench.

With Justices Alito, Scalia, Kennedy and Thomas on his side, Roberts has the majority needed to push the Republican agenda down our throats even in the face of a congress stacked against them by popular vote. The recent decision by the Arizona Legislature requiring people to carry "papers" proving their legal residence would normally be quickly overturned by the Supreme Court. Not now. In less spectacular fashion, "Citizens United" will undermine our entire legal system by putting all courts in play. The vast majority of states require periodic re-election of judges. These become partisan positions when it's necessary to raise money for campaigning. What judge can afford to make a ruling against a powerful commercial interest when that corporation has the power to unseat him in his next election? Between 1980 and 1990 $85 Million was put into judicial elections. In the following decade it went to $200 Million. The lid is now off.

Perhaps the greatest mischief that this decision injects into our political mix is the threat it poses to confidence in the system. For generations we have “assumed” that the Supreme Court was the last bastion of fair play upon which we could fall back. Not only is the stature of the court compromised, but given the degree to which money and influence already dictate the course of our politics, the open door to unlimited funding from deep pockets could easily destroy any confidence we now have in the congress.

The irony is that our previous Republican president, with unanimous support of Republican members of congress and (seemingly) every Republican in the country, initiated at least three wars (Afghanistan, Iraq and “the war on terror”) and continue to advocate their indefinite extension based on the presumption that we’re bringing “democracy” to the region. Meanwhile, through a myriad of provisions of the “Homeland Security” Act, illegal wiretaps and their majority standing on the Supreme Court, they are systematically attacking our own democracy here at home.

So what precisely does the decision allow, and what can we do about it?

The new ruling does not allow unlimited political contributions to political candidates and parties. It allows corporations (and unions) to finance campaign materials. Corporations may now finance unlimited amounts of advertising, propaganda and broadcast time. The decision also overturns the 30 and 60-day blackout periods provided by McCain/Feingold, allowing scurrilous, “eleventh hour” attacks that candidates don’t have the time or resources to counter. With our bias to this media, this is our most influential source of campaigning power. (The “Swift Boat” attacks on John Kerry, occurring at the very end of the 2004 election cycle, though fabrication, have been credited with determining the outcome of that election.)

There is a citizen movement toward a constitutional amendment to repeal this decision: Move to Amend. Good luck. This process, requiring 2/3 majorities from both houses of congress plus approval from ¾ of state legislatures, could take years. In the time that this requires, the effects of the decision could easily remove any vestige of the integrity from our various legislatures that might be necessary to pass it.

There are things that can be done to mitigate this ruling. If the court can dictate that corporations have unlimited speech, then congress can dictate that we are entitled to know the source of the speech. Robbinsense advocates that campaign materials, henceforth, be required to have documentation prominently displayed to indicate the actual source of funding. No more “straw man” groups (“Citizens for Honesty in blah, blah, blah…” would be allowed.) If an “infomercial” that advocates a political position is known by the viewer to have been paid for by Exxon/Mobile and Bear Stearns, it is likely that viewers will realize they’re being manipulated. The thrust of the message in this case may even backfire.

Please write to your representatives in congress. If you don’t want to take the time to compose a message, use the following:

Congressman/Senator:

I am very concerned by the recent ruling in Citizens United v. Federal Election Commission. I stridently and respectfully request that you take action to mitigate the consequences that this will have on our election process.

Specifically, I suggest that the time has come when the public should no longer be subjected to propaganda from deep-pocket sources without disclosure. Please introduce and/or support legislation that will require political broadcast material to display prominently the actual source of funding. We should see in large font a static, five-second display of the funding source/s at the beginning of the material, and at the end.

THE FOLLOWING BROADCAST IS FINANCED BY:

EXXON/MOBILE AND BEAR STEARNS

Plus,

THE PRECEDING BROADCAST WAS FINANCED BY

EXXON/MOBILE AND BEAR STEARNS

Thank you for your consideration.

Sincerely,

You may copy and paste this letter to an email to your representatives, in websites listed below.

https://boxer.senate.gov/en/contact/policycomments.cfm

http://www.feinstein.senate.gov/public/index.cfm?FuseAction=ContactUs.EmailMe

https://writerep.house.gov/writerep/welcome.shtml

Jackson Dave is a Robbinsense staff writer.