BY CHRIS CASSIDY
“Judges are like umpires. Umpires don’t make the rules; they apply them. They make sure everybody plays by the rules. But it is a limited role.” – Chief Justice John Roberts ’79, speaking to the Senate Judiciary Committee in 2005
That was then.
Now, the conservative wing of the U.S. Supreme Court defers neither to its own precedents nor to decisions by other branches of government. In fact, when stare decisis and our constitutional system of checks and balances interferes with their personal policy preferences, they shrug and legislate from the bench.
The Court’s opinion in Citizens United v. FEC is being hotly debated for its conclusion that corporations and unions are, constitutionally speaking, people whose free speech the Founders intended to protect. Will there be an unprecedented flow of money into politics from already powerful interest groups? Is this merely the faucet being turned up, or the breaking of the dam? Few doubt that this decision will have a profound impact on our country’s electoral landscape.
However devastating the consequences, though, how this Court arrived at such a myopic ruling may be even more disturbing.
Five of six Republican-appointed Justices abandoned legislative deference, overturning more than 100 years of campaign finance legislation. In the same opinion, they reversed the two leading opinions on campaign finance law. The law’s shape-shifting properties seem to prove the legal realist maxim that the Court is not final because it’s right, but right because it’s final. Somehow, though, old sayings are hardly comforting when it becomes so readily apparent that, if you want to win the game, all you have to do is change the umpires.
Justice John Paul Stevens found room in his 90-page dissent to make exactly this point. “The only relevant thing that has happened since Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) and McConnell v. FEC, 540 U.S. 93 (2003) [which Citizens United overturned] is the composition of this Court,” Justice Stevens wrote. The sentiment was shared by Justice Sandra Day O’Connor, who stepped down from the Court in 2005 and was replaced by Justice Samuel Alito — a member of the Citizens United majority. Asked for her legal assessment of Citizens United, she cooly instructed her questioner to read McConnell, for which she authored the Court’s majority opinion.
Not only did the umpires vastly expand the strike zone in Citizens United, they went out of their way to do so by ordering reargument of the case. After the Court heard oral argument on the narrower issues raised by the parties last term, the Court ordered reargument on whether the existing series of campaign finance decisions was ripe for reconsideration. Put another way, the Court didn’t like what the pitcher was throwing, so they wiped it from the record books and ordered a do-over suited to their specific tastes.
Setting aside the Court’s proactive role in raising the issues that it wanted litigated, it should not go unacknowledged that the Court can and does reverse itself on occasion. In Brown v. Board of Education, 347 U.S. 483 (1954) for instance, the Court rejected the long-standing “separate, but equal” principle that under-girded Jim Crow. The Justices founded their uninimous opinion in constitutional principle of equal protection, and certainly not without considering the laudable goal of ending state-sponsored discrimination based on race.
Here, too, the Court announced an opinion premised on constitutional principles — namely, freedom of speech — in reversing itself. But the similarities end there.
In Brown, the Court’s conscience guided it to unravel legalized segregation, giving greater opportunity to school children across our country. Now, the conservative Justices have hijacked the levers of legislative power to protect corporations from having their “voices” muffled by Congress. In doing so, they have further entrenched special interest politics into our system of governance.
“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 observed.
Alas, these misguided umpires have run amok.
Chris Cassidy is the Assistant Director of Communications at the American Constitution Society and Criminal Justice Blogger at Change.org. The views expressed here are solely attributable to Cassidy.
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