"Citizens United" and the Roberts Court

From Campaign For Liberty:

'Citizens United' and the Roberts Court


By Michael Cummins

View all 4 articles by Michael Cummins

Published 06/30/10



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In early 2010, a 5-4 majority of the United States Supreme Court struck down a portion of the Bipartisan Campaign Reform Act of 2002 (aka "McCain-Feingold"). The Court ruled that the federal government may not prohibit corporate or union spending on independent political advertising.

As President Obama pointed out in his subsequent State of the Union address, Citizens United v. Federal Elections Commission (2010) reversed a century of Court validation of such restrictions on corporate political expression.



Contemporary polls showed that 65-80% of the American public disapproved of the Court's action. These figures tracked closely with the levels of support that McCain-Feingold enjoyed at the time of its passage.



This parity is revealing, presuming that approximately the same set of people who supported restrictions on corporate speech, from a substantive standpoint, also disapproved of the Court's decision. It suggests that the public expects the Court to simply serve its perceived interests, heedless of constitutional considerations. More pointedly, it suggests that the public believes that the Constitution can and should be interpreted to align with whatever seems to be in the public interest at any given time.



This should not surprise us. For the past century, America's leadership elite has taken pains to convince the public that, because it is written largely in "the abstract language of political morality,"1 the Constitution's true meaning is not discernable through a plain-English reading of its content. Instead, to paraphrase early-20th century chief justice Charles Evans Hughes, the Constitution is whatever the latest group of justices has contrived it to be.



This so-called 'progressive' conception of the Constitution has been put into operation primarily through the institutionalization of the doctrine of stare decisis (Latin for "let the decision stand"). Under strict practice of this doctrine, current justices are bound to follow the most recently preceding interpretations of constitutional law.



Pledging allegiance to stare decisis is a mainstay of the dog-and-pony show otherwise known as the modern Senate confirmation hearing. Supreme Court nominees are - to a person - asked if they will respect the primacy of precedent when they serve. It is well understood that the answer needs to be some variant of "yes," and it always is.



Stare decisis has its roots in the administration of common law. In a time when statutory ('civil') law was understood to cover only selective aspects of civic affairs, adherence to decisional precedent served as an agent of stability. Through consistency of expectations, it regulated citizens' dealings with one another.



But when interpretational precedent is layered upon a system of established civil law like ours, with a written constitution at its base, it has the effect of superseding that system over time. This actually serves to destabilize the rule of law. With the aggregation of decades and centuries, the underlying civil law is smothered.



But how can this happen, if all interpretations are perfect analogs of prior interpretations, as stare decisis seems to command? It is because stare decisis is not strictly obeyed in practice. Furthermore, it is disobeyed far more often by those interested in novel 'interpretations' of the written law, in service of the expansion of federal power, than it is by conservatives who might wish to turn back the tide of 'progress.'



Commonly, people consider stare decisis as having been disobeyed only when a new ruling explicitly overturns a past ruling. The classic example is Brown v. Board of Education of Topeka (1954), wherein the Court reversed Plessy v. Ferguson (1896), which held that separate public accommodations for different races was permissible as long as the accommodations were 'equal' in nature.



But consider the landmark liberal decisions of Heart of Atlanta Motel v. United States (1964) and Roe v. Wade (1973). The majority in Heart of Atlanta Motel invoked the Commerce Clause to affirm Congress' power to forbid private businesses from refusing to serve customers based on their race. In Roe, the Court ruled that the federal Constitution forbids the outlaw of early- and mid-term abortions at the state and local level.



These decisions were as much a break from precedent as Brown was. The precedents they broke were merely of a negative nature: in times prior to each ruling, it was simply not officially contemplated that federal power could extend to the realm at issue.



Liberal Courts have busted hundreds of precedents in a similarly inconspicuous manner. Heart of Atlanta Motel and Roe are just among the more prominent examples.



Owing to the nature of how the states set up the federal government - conceptually, it started with no power, and was built up enumeratively - conservative jurists who unilaterally adhere to stare decisis can at best hold the line on the expansion of federal power. The only way to ratchet back previous expansion is to take the dramatic tack of explicitly overturning past Court decisions. The conservative temperament has, historically, shied away from doing this.



The past century has seen this state of affairs perfected. Any fealty the Court displays to the Constitution is happenstance. Progressive justices make a great show of adhering closely to the document when it aligns with their interests. They cite or create justifying expansionist precedent when it does not. All the while, conservatives play defense. Because a whimsically obeyed Constitution is an effectively inoperative Constitution, the elaborate fantasy that progressives have built in the document's place is continually safeguarded and augmented.





But something is stirring today on the John Roberts Court.



History may prove that the confirmation of Antonin Scalia as Associate Justice in 1986 was the beginning of the end of the stare decisis era. As required, Justice Scalia stated that he "strongly believe(s)" in the doctrine during his confirmation hearings. But in practice, he has been willing to respect precedent only insofar as it has proved useful in resolving true ambiguities in the Constitution's text, as applicable to cases before the Court.



Justice Scalia is an originalist. Though originalism comprises several slightly variant strains, its basic tenet is that the Constitution is, and only is, that which its ratifiers perceived it to be. Their perception of the document can be inferred through the ordinary contemporary meaning of the words therein.



Change in the overall demeanor of the Court happens slowly. It took almost twenty years for Justice Scalia to be joined by three like-minded colleagues, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts.



It also takes time for the right cases to come along. When first heard by the Court, Citizens United was not a direct constitutional challenge to McCain-Feingold. In a surprising move, the Court invited the parties back for a second hearing, to address broader arguments not contemplated in their original filings.



We do not know for sure why the Court did not simply rule on the narrower issues required by the facts of the case. But, most likely, it became clear to the four originalist-leaning justices that, if given the chance, swing justice Anthony Kennedy would back a full-blown invalidation of the ban on independent corporate political advertising. As Justice Stevens surmises in his dissenting opinion, "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."



Justice Kennedy is not much of an originalist, so the majority opinion he authored pursued many lines of reasoning. But in a key section, within which he announces the overruling of a major precedent, Kennedy cites the remarkably straightforward, unambiguous text of the First Amendment's Free Speech Clause: "Congress shall make no law … abridging the freedom of speech." This dictum concerns itself solely with its subject - Congress. The nature of the speaker - individual, group, or corporation - was apparently of no matter to the framers. In a short concurring opinion, Justice Scalia observes that Justice Stevens' ninety-plus page dissent, filled as it is with discussion of the distinction between individual and corporate speakers, stands "in splendid isolation from the text of the First Amendment."



At long last, a decisive bloc of the Supreme Court has asserted that the Constitution is not a mess of tea leaves, as progressive leaders have led us to believe.



By the end of 2010, we will know if Citizens United indeed marks the beginning of a new era of Court enforcement of constitutional law. Currently, the Court has before it at least two opportunities to demonstrate its commitment to originalist jurisprudence.



The Court will decide shortly whether to hear the Republican National Committee's challenge to the McCain-Feingold ban on unlimited 'soft money' donations to political parties. The Court upheld the ban in 2003, but Justice Kennedy was among the dissenters at that time. This and his apparently eager cooperation on Citizens United suggest that originalism will prevail in the RNC case.



A challenge to local bans on handgun possession, McDonald v. Chicago, has already been heard, and a decision is forthcoming. McDonald may well see the Court overturn a repeatedly reaffirmed precedent from 1873, which said that the Bill of Rights does not necessarily apply to state and local governments. (The Court has since selectively "incorporated" almost all parts of the Bill of Rights, save the Second Amendment, by way of the Fourteenth Amendment.2) In mid-2008, Justice Kennedy joined the four originalist-leaning justices in overturning the federal handgun ban within the city limits of Washington, DC. If Kennedy joins them again in McDonald, progressives might start to realize that they can no longer rely on stare decisis to keep true constitutionalism at bay.3





Progressives' insistence that the Constitution is a 'living' document is accurate in one sense: the Article V amendment process provided complete flexibility to succeeding generations. The amendment process is arduous, but that is by design. The Founders were deeply concerned about individual rights, but they also knew that the unchecked rule of the majority -- rule by men, not by laws -- could not provide the stability necessary for a nation to prosper.



So it is in some sense admirable that a group of lawmakers has proposed a constitutional amendment to counter the Citizens United decision (in contrast to efforts of dubious constitutionality, like the DISCLOSE Act). This is precisely how the system is supposed to work.



But these lawmakers may be wasting their time. To those with deep pockets, a legislative and executive branch constrained by an assertive originalist Court will start to look like a not-so-attractive investment opportunity. When there are few goodies to be had, and few onerous regulations to fear, corporations just might find that good old productive capital provides a better return than political expenditures.





1. Ronald Dworkin, "The Decision That Threatens Democracy," New York Review of Books, May 13, 2010.



2. There is a controversy among liberty-oriented scholars over whether incorporation of the Bill of Rights is called for by a properly originalist understanding of Fourteenth Amendment. See http://www.independent.org/newsroom/article.asp?id=2740 and http://mises.org/journals/jls/21_2/21_2_4.pdf for contrasting views on this.



3. Since this writing, McDonald was decided in favor of gun rights. The Court's decision only selectively incorporated the Second Amendment. But that itself overturned a repeatedly reaffirmed precedent from 1876, which denied incorporation of the Second Amendment specifically.







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