Conventional wisdom holds that the President occupies the most influential position in Washington. At any given moment, one could find justification for this in a number of ways. However, many of the President’s powers rely on the approval of Congress in order to become realities – the very reason why President Obama has found it so difficult to pass any legislation after the 2010 election’s “Tea Party takeover” of many seats in the House and Senate. Similarly, while the Constitution charges Congress with the power to create legislation, internal divisions and the right to filibuster in the Senate, led to what many consider the least effective Congress in history, as well as a new low in the American public’s approval rating of Congress, currently hovering around 10%.
For these reasons, the Supreme Court enjoys a uniquely timeless role as the ultimate arbitrator for issues concerning the rule of law, and historically, very high approval ratings. Once appointed, many Justices remain on the bench for several years, even decades, as they watch different Presidents’ administrations come and go. Responsible for guaranteeing the continuity and consistency of the American legal system, Justices traditionally confined their rulings to the matters at hand in any particular case, as to cause the least amount of interruption possible. The lasting influence and absolute power of the Supreme Court comes along with the responsibility to protect legal precedent and the legacy of the Constitution. Why, then, would the Court choose to cause what Jonathan Alter termed “the most serious threat to American democracy in a generation”?
In a fascinating New Yorker expose best summarized as how “Chief Justice John Roberts orchestrated the Citizens United decision,” Jeffrey Toobin argues the Chief Justice holds primary responsibility not only for deciding the case, but also for determining the form of its legal implications. Toobin acknowledges that while Justice Antonin Scalia opened the door for a wider interpretation of Citizens United, “the oral arguments [took] the case – and the law – in an entirely new direction.” Toobin alleges that under Roberts, the Court shifted into a mode of extremely conservative judicial activism. In the case, the Federal Election Commission complained that Citizen United’s documentary, Hillary: The Movie, would prove “susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.”
During the first round of oral arguments, Toobin points out, Justices Alito, Kennedy and Roberts used a targeted series of questions that put Malcolm Stewart in awkward position. As Solicitor General, the title charged Stewart with the responsibility of defending the FEC’s right to moderate political speech in the period immediately preceding an election. Alito asked whether the government could limit the use of corporate funding for books in addition to the current restrictions on video commercials. Stewart circled around the subject, “not saying it could be banned… I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its –”
To retort, Kennedy pushed the subject further to inquire about the 30- and 60-day time limits of the FEC’s restrictions on political advertising as they apply to primaries and general elections, respectively. Stewart attempted to continue his defense, but at this moment, according to Toobin, Roberts displayed his “instinct for the jugular.” He asked whether the mention of a candidate’s name at the end of a 500-page book, after the statement “vote for…,” would qualify under the same FEC rules. Stewart attempted to rationalize the defense around existing FEC provisions on express advocacy. In the process, the notoriously conservative Alito swayed the direction of the two more moderate justices’ inquiry toward concerns of censorship. Acting as Solicitor General, Stewart held the unique responsibility of providing an honest and forthright opinion that weighed both sides of the argument from the federal government’s perspective. As a result of his attempts to legitimize the government’s right to moderate political speech, Stewart hinted at the dangers of such legislation to any speech, even the free speech guaranteed by the First Amendment.
Roberts initially took the ball in his own hands, assigning himself the task of writing the opinion for Citizens United. While his original statement limited the legal ramifications of the case to the Hillary: The Movie documentary, Justice Kennedy pushed him to widen his stance. The other conservative justices agreed, and Roberts allowed Kennedy to author the opinion instead. As a result, “The new majority opinion transformed Citizens United into a vehicle for rewriting decades of constitutional law in a case where the lawyer had not even raised those issues.” These laws included the McCain-Feingold Act, a 1990 Supreme Court decision and other historic restrictions on corporate giving to political campaigns.
Perhaps most shocking, Roberts’ personal stance conflicted directly with one took earlier in the same session, in a case called Cone v. Bell. Then, he gave Thomas Goldstein, the lawyer for the defendant, an extremely difficult time for attempting to apply the case to matters outside the issue raised by the original petition to the Court. Now Roberts felt prepared to do that very same thing, apply the case to unrelated, previously established legislation and decisions in a rather hypocritical manner. What changed? When Justice Souter alleged Roberts violated the rules and conventions of the Court “to engineer the result he wanted,” Roberts reversed his previous position, removing the case from the docket of decisions reached, opting for reargument of the case during the following Court session, after the summer recess. Even in terms of scheduling, the Court put the case at the top of the agenda for September 2009, ensuring a decision in advance of the 2010 elections.
Newly sworn in as Solicitor General, Elena Kagan did her best to present the government’s side during the reargument proceedings. Liberal Justices, such as Ginsburg and Stevens, allotted several occasions in their lines of questioning for Kagan to legitimize limits on campaign contributions from corporations, raising issues of historical precedent and jurisprudence, as well as the potential for foreign-owned corporations to exert influence in elections. Alas, the votes remained fixed at 5 to 4, with Alito, Kennedy, Roberts, Scalia and Thomas erring on the side of judicial activism to overturn decades of election campaign and fund raising rules. Familiar with Justice Kennedy’s tradition of strident defense of free speech, especially when it applies to political campaigns, Roberts pulled a genius move in choosing Kennedy to write the reargument of the case’s majority opinion.
Kennedy masked the intentions and effects of Citizens United behind the veil of protection of minorities and the underprivileged:
By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each… The Government has muffled the voices that best represent the most significant segments of the economy. And the electorate has been deprived of information, knowledge and opinion vital to its function. By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests… If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.
In a stunning 90-page minority opinion, the longest written by him since appointment to the Court under Gerald Ford’s administration, Justice Stevens called attention to the exercise of extreme judicial activism symbolized by the Citizens United decision. He indicted the five conservative Justices as “unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” Given that corporations could fund political ads in any period outside the short pre-election term of FEC restrictions, and the ability of any corporation’s employees to form a PAC to advertise on any issue at any time, Stevens did not buy Kennedy’s arguments on the subject of free speech. Stevens similarly invoked the legacy of the Court to differentiate between the free speech rights of corporations and individuals, as well as the difference between the Court’s ideological purity and the real life effects of Court decisions. In his own words, “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.”
Thanks to a related decision by a DC Circuit Court in 2010, individuals can contribute unlimited amounts to PACs, which can support any individual candidate they wish. The result, when paired with the Citizens United decision: Donations that totaled fifteen million dollars by Sheldon Adelson, the casino tycoon, to Newt Gingrich’s Presidential campaign. After Gingrich left the race, Adelson additionally promised up to one hundred million dollars to Mitt Romney’s Presidential campaign. Karl Rove’s Super PACs, Crossroads and Crossroads GPS, raised another thirty million for Republican causes by the end of May.
In an article for Newsweek and The Daily Beast, Jonathan Alter expands on the potential damage the Citizens United decision inflicts on American Democracy. In his terms, “instead of ruling narrowly, the Roberts Court—in a new standard for judicial hypocrisy—struck down the laws of 22 states and the federal government.” He analogizes the case to Roe v. Wade, with the exception of a role reversal, with the Court defending the rights of the majority (wealthy influences and corporations) at the expense of minorities (unions and political outsiders) clearly incapable of raising similar amounts of capital to convert into political speech. He continues,
In a devastating decision, the high court cleared the way for one of those corporate takeovers you read about, only much bigger. If Exxon wants to spend $1 million (a bar tab for Big Oil) defeating an environmentalist running for city council, it can now do so. If Goldman Sachs wants to pay the entire cost of every congressional campaign in the U.S., the law of the land now allows it. The decision frees unions, too, but they already spend about as much as they can on politics. Fortune 100 firms currently spend only a fraction of 1 percent of their $605 billion in annual profits on buying politicians.
As with so many other observers of the Court, the editorial page of The Boston Phoenix cried hypocrisy under the headline “Impeach John Roberts.” The staff of the paper points out the numerous differences between corporate personhood and the rights of a real, human person:
Never mind that corporations are not required to sit on juries. Overlook that they cannot vote. Forget that they cannot be called upon to shed blood in military service. Disregard that there is no corporate death tax, because corporations — unlike actual people — can live forever. The Roberts court affirmed that corporations — even if controlled by foreign shareholders — have the same free-speech rights as American citizens. They just happen to have big bank accounts.
An alternative to corporate-funded campaigns exists in the form of public campaign financing, already used in New York City for local elections and common in many European countries’ elections. This same option came to the Court’s desk in 2010 in the form of another case. Previously, Arizona created a public financing system in response to a series of scandals that marred state politics in controversy. The system privileged less influential candidates for high profile positions when vastly outspent by rival candidates’ private funding, which often came from corporations or rich donors. This time, the Court again voted to strike down the campaign restrictions, with Roberts assigning himself as opinion writer. Toobin concludes his account of Roberts judicial activism with the following quote from Roberts’ decision and his own thoughts on its implications:
Leveling the playing field’ can sound like a good thing,” he wrote. “But in a democracy, campaigning for office is not a game. It is a critically important form of speech. The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom—the ‘unfettered interchange of ideas.’ ” The Roberts Court, it appears, will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.
Garrett Epps, formerly a Washington Post reporter and professor at the University of Baltimore, writes in an opinion piece for The Atlantic on another case of Robert’s hypocrisy. In March 2011, the Court ruled in favor of the Federal Communications Commission over AT&T’s interests in disclosing pricing information the corporation’s lawyers deemed a violation of its “personal privacy.” Roberts pens at length about the importance of words in his decision, dissecting the English language as if his mastery of the language trumps that of all others.
AT&T’s argument treats the term ‘personal privacy’ as simply the sum of its two words: the privacy of a person… But two words together may assume a more particular meaning than those words in isolation. We understand a golden cup to be a cup made of or resembling gold. A golden boy, on the other hand, is one who is charming, lucky, and talented. A golden opportunity is one not to be missed. ‘Personal’ in the phrase ‘personal privacy’ conveys more than just ‘of a person.’ It suggests a type of privacy evocative of human concerns–not the sort usually associated with an entity like, say, AT&T… We trust that AT&T will not take it personally.”
However, in this case, Roberts made sure the ruling would only pertain to the case at hand, and not to any other matter outside it. This comes in stark contrast with his handling of the Citizens United case, for which the prospect of judicial activism failed to prevent his ruling. Epps’ investigation reveals Roberts’ fascination with semantics came after a career-long legacy of undermining others for simple grammatical or spelling errors.
While working in the Reagan White House, Roberts incessantly picked at the prose diction of both other officials and outside correspondents writing to the president. A public educator who criticized Reagan’s education policies was dismissed by Roberts with a snarky note that he “inadvertently proves our point about the quality of public education by incorrectly using ‘affect’ for ‘effect.'” He critiqued a letter from three District of Columbia officials as “reading as if it were an awkward translation from Bulgarian.”
It is probably Roberts’ obsession with editing others that led to the most humiliating moment of his career, his muffing of the presidential oath during Barack Obama’s 2008 inauguration. The Constitution begins the oath thus: “I do solemnly swear that I will faithfully execute the office of President of the United States.” Somewhere in the brain an alarm went off–inelegance! Dangling modifier! Change! Change! And it emerged from Roberts’s mouth as “that I will execute the office of President to the United States faithfully.”
During his own confirmation hearing, Roberts famously said “Judges are like umpires. Umpires don’t make the rules; they apply them.” Then, why did Roberts strike down precedents that dated more than one hundred years, including some enacted by Republicans’ most respected figures, including Teddy Roosevelt, Robert Taft and John McCain? The Citizens United and “Obamacare” decisions, the latter of which will contitute the second part in this series, when paired with others such as the FCC v. AT&T case, point perhaps to a mysterious force at play. Speuclation offers little in the way of meaningful conclusions, but this outside force either clouds Roberts’ judgment or pushes him into decisions inconsistent with his own beliefs – or at least, the beliefs he espoused during his confirmation hearing.
Part II, A Corporatist Chief Justice: The Role of John Roberts in “Obamacare” coming soon.