The Supremes Are Already a Partisan Court

October 30, 2018

The violence of this election season is heart-rending, outrageous and dangerous, but so many of us have been predicting and warning about I’m at a loss for words. So, instead, I’ll turn to what I had planned for today.

Chief Justice Roberts told people at the University of Minnesota that the Supreme Court will serve “one nation,” “not one party or interest.” The judicial branch, he said, “is, must be, very different” from the political branches. He commented that the justices have a century-old tradition of shaking each other’s hands before taking the bench to hear arguments. “It’s a small thing,” Roberts said, “but it is a repeated reminder that … we do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest, we serve one nation.” In fact, this Court has already become very partisan, Roberts’ sugar-coating to the contrary notwithstanding.

The Constitution, by the way, calls them judges, not justices, perhaps because we don’t always get justice from judges. Judge Kavanaugh’s rant and assumption that the Clintons were at the base of Dr. Ford’s allegations reflected his deeply partisan career. Whatever happened between Judge Kavanaugh and Dr. Ford, assuming a Clinton conspiracy in the absence of facts is the very definition of prejudice. That’s become standard Republican behavior – if they don’t like the facts, they just claim a conspiracy. That alone makes it impossible to believe Democrats will get justice from Kavanaugh.

The problem goes much deeper. The Roberts Court has done everything possible to make sure that Republicans control government, regardless of the will of the people. Republican gerrymandering of legislative seats built large victories in the House of Representatives and many state legislatures while the voters were turning against them, thus reversing what the public voted for. That’s why they did it. But the Roberts Court protects their gerrymandering.

The Roberts Court eviscerated the Voting Rights Act. Witnesses testified about continued efforts to close or move polling places, put fewer polling booths in Democratic than Republican areas and strike large numbers of legitimate but likely opposition voters from the registration rolls. The enforcement provisions of the Voting Rights Act were actively blocking those efforts. The Roberts Court turned that on its head: because those provisions of the Act had been working, they weren’t necessary any more – a non sequitur any elementary school child would have understood.

The Court stripped voting rights from people who lacked government issued photo ids despite the costs to some voters, in wages and fees, to get the documents required. States could have eased those burdens except that the point was to prevent legitimate voters from voting, to make it harder for the disabled and the poor to vote, all in the absence of any evidence of relevant voter fraud. Election specialists have pointed out in vain that mailed and computer voting present much more serious problems. But state legislatures addressed neither of those problems. They were intent, instead, on stripping rights only from voters they expected to vote for the other party.

And the Court flaunted its political partisanship in cases like Citizens United, by freeing corporations to use their enormous resources in politics, while stripping political resources from unions who represent the factory workers and other regular people who are suffering now.

There’s nothing even-handed about all that. It’s a direct attempt to take the power away from the people and hand it to Republicans, who are otherwise losing the support of the public. There’s nothing legitimate about rigging elections.

Republicans warn that Democrats, if they win, might politicize the Court. That’s a joke. Republicans have already politicized the Court. If Democrats succeed in restoring the balance, that will be a big blow for a fair court. That’s why all our votes matter.

— A version of this commentary was broadcast on WAMC Northeast Report, October 30, 2018.

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Anthony Kennedy And The Future Of The SCOTUS

July 4, 2018

Welcome to Iran. Iran has a Guardian Council of men in long robes. We have a Guardian Court of nine judges in black robes. Both decide who rules. The Guardian Council of Iran decides who is allowed to run. The Guardian Court decides which party wins by blessing the vote rigging that favors Republicans – by blessing gerrymandering after the Republicans rewrote voting districts to favor themselves; by blessing registration requirements that Republicans erected to block anyone likely to vote Democratic from getting or staying registered and from voting; and by removing the protections of the Voting Rights Act against discriminatory devices in the former Confederate states and wherever discrimination had been the rule.

The Guardian Court competes with Iran’s Guardian Council for political control by limiting what labor unions can spend[1] and by overruling limits on political spending by corporations.[2] It tilts the whole electoral environment toward the rich and powerful and against workers and consumers.

The U.S. Guardian Court is nearly as effective as the Iran Guardian Council, even without Russian help. And the retirement of Justice Anthony Kennedy will make it worse. He was the only conservative who understood that vote rigging is inconsistent with a democratic constitution and sometimes acted on that understanding. With a less principled replacement, the current court will present an even bigger barrier to protecting American democracy.

This isn’t about law and all about partisanship. It’s not, in Roberts famous example, like an umpire calling balls and strikes. It’s an umpire in one ball club’s pay, corrupt even as courts across the globe are gaining the confidence to insist on clean elections. To put it another way, the U.S. court system is being corrupted by the rewards of capitalism.

Still more is at stake. Roe v. Wade,[3] protecting a right to abortion, is at stake in the changes in the membership of the Court along with a panoply of labor, consumer, environmental and civil rights protections.

Discouraged? This is the worst time to be discouraged. We can take the country back. But first we must win two elections, the 2018 legislative election and the 2020 presidential election.

Winning the 2018 legislative elections on both the state and national levels can reduce the damage. Fairer state legislatures can insist on fairer elections. Congress has the power to regulate national elections to block states from using unfair rules. And it can block Trump’s plan to abuse the census to further turn the Republican minority of voters into national dominance.

Along the way, winning in 2018 can prevent any more bad nominations to our court system. It can block the Administration’s abuse of everyone from workers to women to immigrants.

Winning in 2020 will make all that easier and it will make it possible to get the Court back. Yes I said we can get the Court back; we can end the rule by the US Guardian Council that masquerades as a Court.

The Constitution does not specify the number of justices on the Supreme Court. That is set by law.[4] The number of justices has been set as low as five and as high as ten.[5] Although a controversial proposition, it has been argued that the number can be changed by the simple process of nomination and confirmation.[6] Either way, it is not set in stone.

President Franklin Delano Roosevelt proposed to increase the number when the Court was blocking his efforts to deal with the Depression. In the event, the Court backed down without any change in the number. But the point is that it can be done and should be.

This is a time to get fired up by the efforts of the capitalists, corporations and wrong-wing religious groups to use the courts to take our country away from us. We can take it back. We must and will take it back.

— This commentary was broadcast on WAMC Northeast Report, July 3, 2018.

[1] Janus v. AFSCME, Council 31, 2018 U.S. LEXIS 4028 (2018).

[2] Citizens United v. FEC, 558 U.S. 310 (2010).

[3] Roe v. Wade, 410 U.S. 113 (1973).

[4] 28 USC § 1.

[5] Act of Feb. 13, 1801, § 3, 2 Stat. 89; Act of March 3, 1863, ch. 100, 12 Stat. 794.

[6] Peter Nicolas, “Nine, Of Course”: A Dialogue On Congressional Power To Set By Statute The Number Of Justices On The Supreme Court, 2 NYU J.L. & Liberty 86 (2006).


Whitford v. Gill

June 19, 2018

Commentators have treated the Court’s decision in Whitford v. Gill, the Wisconsin gerrymandering case, as just a technical decision, a delay in getting a substantive decision out of the Court. They’re nuts and I’m furious.

Roberts, the current Chief Justice of the Supreme Court, is stalling for time. Time serves the Republicans in several ways: the most likely and immanent resignation is from Justice Kennedy who is the weak link in the conservative justices’ opposition to doing anything about gerrymandering; the oldest member of the Court is Justice Ginsburg and she is reliable in demanding equal protection in voting arrangements; replacing either of those justices while Trump is president would give Republicans a solid 5-vote majority in all elections cases and just about everything else. It would lock in the Republican majority. Roberts is trying as hard as he can to lock in Republican victories at all foreseeable elections, after famously telling the Senate at his confirmation hearings that he was merely an umpire calling balls and strikes. Umpires like that should be fired.

He also unleashed another ploy that people did not understand. By insisting that standing – a technical term for the right to sue – has to be asserted by plaintiffs based on their specific districts rather than statewide to challenge inequality in voting arrangements, he actually tried to shred plaintiffs’ proof. The best explanations of what gerrymandering is follow what the people who draw the lines actually do – they try for the best and most reliable statewide partisan vote for their party. But Roberts says that’s not justiciable. He wants proof for each district in which the voters votes are wasted and their voting power is diluted. But the basis of the dilution claim is precisely the equal protection comparison with all the other districts. If that is out of bounds, plaintiffs are entitled to take a walk to the outhouse.

But, a lawyer writing friendly-seeming language so that people will not understand how badly they are being affixed by a threaded metal fastener to the wall of defeat, Roberts makes it sound like they can just sharpen their presentation and then all will be just fine. Roberts should be impeached as unworthy of the robes of justice.

I’d go further. Many scholars have argued quite convincingly that over its two-and-a-quarter centuries, the U.S. Supreme Court has done much more harm than good. Some of us nearing the end of our careers happened to start practice at a time when we did have a people’s Court, a court that believed in equality and ended segregation, a court that believed in democracy and ended malapportionment, a court that believed in accurate fact-finding and tried to end abuses in the system of so-called criminal justice. But that Court has gradually slipped out of reach until the present Court has become an apologist for the abuses of the rich and the powerful, giving corporations the power to shred the rights of employees, customers, neighbors and political opponents.

So I think it’s time for some constitutional amendments that would really make a difference

  • End the electoral college in favor of voting for president by popular vote, ending the reign of minority presidents like Trump – unless the courts still manage to protect underworld control of elections
  • End the treatment of corporations as legal persons and let them face the regulatory ax
  • End gerrymandering and put an end to control by judicial partisans who shred the meaning of both equality and democracy
  • And, my favorite, an amendment to delete Article III and abolish the so-called Supreme Court – I’d like to see Roberts homeless, without a job, a robe or any of the respect due a decent person.

  This commentary was broadcast on WAMC Northeast Report, June 19, 2018.

 

 


Trump and the Swamp

June 6, 2017

Trump promised to drain the swamp. We can agree that the swamp is the predominance of special interests over Americans of ordinary means. Bernie Sanders won many hearts and minds by refusing to take big money. Trump claimed independence from big money because he had so much. Clinton lost many votes because she accepted large speaking fees and contributions. A large populist wave by financially ordinary Americans swept the country.

People credited Trump’s promise to drain the swamp. With Trump in power, we’re entitled to look at his actions. Indeed we should.

Most Democrats long tried to take big money out of political campaigns. With some exceptions, like John McCain, Republicans worked to protect the use of money in politics. In the McCain-Feingold Act, Congress managed to compromise between their positions. But the Supreme Court, dominated by Republican appointees, invalidated restrictions on campaign contributions, and held in Citizens United, that corporations could contribute funds straight from corporate treasuries. Heard anything lately from the White House about campaign finance regulation? I didn’t think so.

Trump wants to lower the tax and regulatory burdens on the wealthiest people and companies. He claims in justification that the extra costs harm American workers. I recognize the heated debates about those claims. I’ve repeatedly explained in this commentary that putting more money in the hands of the wealthiest people and corporations is unlikely to spur investment or improve the position of American workers. It won’t help American workers because corporations can and do spend extra money everywhere, including abroad. It won’t help American workers because extra wealth can be and is spent on nonproductive goods or investments. And it won’t improve the position of American workers because there is no shortage of capital in this country, so putting more in in wealthy or corporate pockets is like pouring mud into the Mississippi.

Eliminating regulations will also put money in wealthy and corporate hands but hurts everyone else. Unions have been big proponents of safety regulations because they protect the health and safety of workers, and, we should add, of consumers and citizens.

Trump’s proposed budget also pulls up the safety net and hands the savings to corporations and the wealthy. The safety net protects people when they fall on hard times, when illness drains their bank accounts and strains their budgets, when corporate decisions leave workers struggling to find new jobs and forced to feed families on minimum wage jobs. These have direct and indirect costs for all of us. Losing a job can be temporary but it can also be a fall into a rabbit hole that sucks out everything we’ve invested in our homes, our retirement, and stresses, even breaks up our families. In 2008 those factors spread and took a lot of us down. The safety net was intended in part to help slow or stop economic downturns. 2008 overwhelmed what was left of the safety net but Trump would make it worse.

And health care decisions don’t just affect the most vulnerable. None of us want people spreading serious or medicine-resistant strains of TB, Zika, MRSA and other communicable diseases. Effective strategies against communicable disease involve keeping the diseases out of the population to the extent possible.

In Trump’s budget, the savings from all these cuts go to the 1/10 of 1%, the wealthiest of the wealthy, the very people who should be giving back rather than sucking at the public til. Trump promised to drain the swamp. But Trump IS the swamp.

— This commentary was broadcast on WAMC Northeast Report, June 6, 2017.


Proposed Amendments to Overcome Citizens United

July 19, 2016

This is the third in a series on Money in Politics. Last time we discussed the difficulty of getting the Court to overrule Citizens United. Because of that, several constitutional amendments have been proposed as joint resolutions and introduced in Congress in order to undo Citizens United and overrule the idea that a corporation is a legal person. After studying them, however, it became clear they have been so sloppily drafted that no one could tell you what they would do.

None that I’ve seen addresses the associations we join. Political, civil liberties, civil rights, and environmental organizations, and professional associations, all take stands on candidates or political issues. The ACLU went to court years ago to protect its ability to take out an ad over the impeachment of President Nixon.[1]

All except the smallest are incorporated and are protected by the right of association. The First Amendment protects speech, press, assembly and petition. In combination, that’s what our associations do to influence public attitudes about major issues. They incorporate to outlast their founders, use the courts, open bank accounts, organize membership and leadership, seek tax-exempt status and protect members from liability for any mistakes the organizations make.

Those associations matter. The lasting impact that people like Rosa Parks and Martin Luther King had on the Civil Rights Movement depended on the organizations that did the advance work, and drove home the meaning of what they and other great leaders of the Movement did. That’s true of most successful political movements. Yet the proposed Amendments stop after denying that corporations have constitutional rights and authorizing legislatures to regulate them.

A literalist could read the Amendments as superseding and repealing all previous protections for the organizations we rely on to reform politics, the environment, civil rights and just about everything we care about. Nothing in the proposals protects them.

Sometimes courts hang on to interpretations of older text and neuter newer language, as the Supreme Court has with language in the amendments passed in the aftermath of the Civil War. In the absence of any language about associations, it is impossible to say what the courts would do to the proposals regarding associations.

One proposal denies that it limits the people’s rights, but it is attached to text which limits what the Court defines as part of the people’s First Amendment rights. The meaning of that exception is mysterious, just authorizing courts to figure it out.

Only two amendments mention a free press. They merely say they “shall [not] be construed to alter the freedom of the press.” That’s nice but the exceptions swallow the proposals because much of political campaigns is in or can be done by the press. Whoever controls the distinction controls the result, whether authorities can squelch the press or the press becomes the next form of improper power.

Corporations often set up subsidiaries for otherwise regulated functions, such as associations or media companies, like what Murdock did with Fox. Some media companies are owned by conglomerates. Many associations set up separate organizations for tax purposes. The NAACP set up Thurgood Marshall’s organization around 1940 to separate its legal work from other organizational work. Lawyers fashion ways to live with rules. So what would a press exception do?

Nor should media companies and political associations have a monopoly on political speech. The law should be neutral and should not protect the speech of some while shackling the speech of others.

Whatever you think of the Roberts Court, and I’m no fan, these are serious issues and no proposal addresses them. Instead they provide feel good language covering sloppy and dangerous clauses.

— This commentary was broadcast on WAMC Northeast Report, July 19, 2016.

[1] Amer. Civil Liberties Union, Inc. v. Jennings, 366 F. Supp. 1041 (D.D.C. 1973).


Dealing with Citizens United: Second in a Series on Money in Politics

July 12, 2016

Last week we discussed the importance of taking political campaigns back from big donors. This week we begin examining the complexity of reinstating limitations without damaging what should be protected speech.

Citizens United[1] angered people about corporate legal rights. People want to remove those rights wholesale. But that view of the Court’s mistake raises far more serious First Amendment issues than most people understand.

Removing corporate protections would require distinguishing corporations that should be protected – political associations, broadcast, digital and print press – from those that should not be protected. That’s not easy. If corporations release “news” reports or take positions, are they press or stockholder associations? What would broadcasters’ or newspapers’ protections depend on? What would legitimate or prohibited explanations of corporate needs and positions be? First Amendment law developed around clear rules to prevent judges or legislators from deciding who can speak about what. Removing First Amendment protection from corporations cuts deeply against the First Amendment grain.

Constitutional rules, however, can be limited for compelling reasons. Citizens United revealed fundamental problems with the justifications, like corruption, for financial limits on participating in campaigns. Quid pro quo corruption is clearly illegal but regulation went well beyond it. Money can divert legislators’ attention from constituent needs toward donors’ needs, but can also expose misbehavior, or champion voters’ interests. Attorneys’ ethics prohibit us from engaging in deals or accepting gifts that create conflicts of interest – but it’s harder to define legislators’ conflicts where the donors or their allies are constituents. So the meaning of corruption has been vulnerable to attack and narrowing by the Court.

Large donations can entrench office-holders against challengers. But they can do the reverse by helping unseat legislators. The Court hasn’t been very receptive to that claim.

Political equality is a right, including rules surrounding voting, vote counting, and apportionment of districts. But just as clearly, economic equality is unacceptable here. The logical conclusion of economic equality would be a never realized vision of communism. Demanding some economic equalization in politics would force the Court to balance the extent to which economic equality can be required by political equality. That’s not a problem with a specific solution. And the Court is skeptical of allowing legislatures to define the balance because they have conflicts of interest. In any event, legislation doesn’t look promising in Congress or in most states. I’ve argued that the Supreme Court must consider equality in shaping economic rules, but that’s harder where it requires narrowing First Amendment principles. So financial equalization is hard to define and harder to argue.

Well-respected Harvard law professor, Lawrence Lessig, argues that campaign finance restrictions would prevent legislators from becoming too dependent on a few powerful donors.[2] Dependence leads legislators to shirk their duty. But legislators shouldn’t be independent of their constituents or powerful voices. So, once again, what’s the right balance? Who is and is not entitled to participate in the political debate? And how much is too much, or too little? Moving beyond Citizens United will have to be done thoughtfully.

In any event, four of members of the Citizens United majority remain on the Court. Justice Kagan is new. People who know her well tell me that she is a First Amendment absolutist, which liberals would have applauded before Citizens United, and she is not likely to overturn it. So the decision will be with us for a while.

Next time we’ll look at the proposed amendments.

— This commentary was broadcast on WAMC Northeast Report, July 12, 2016.

[1] Citizens United v. FEC, 558 U.S. 310 (2010).

[2] Lawrence Lessig, Republic Lost (2011); Ian Shapiro, Notes Toward a Conditional Theory of Rights and Obligations in Property, in Stephen E. Gottlieb, Brian H. Bix, Timothy D. Lytton and Robin L. West, Jurisprudence Cases and Materials: An Introduction to the Philosophy of Law and Its Applications 914 (LexisNexis 3d ed. 2015) (“defin[ing] freedom in terms of the multiplication of dependent relationships”); Bruce Bueno de Mesquita and Alistair Smith, The Dictator’s Handbook: Why Bad Behavior is Almost Always Good Politics (2011); BRUCE BUENO DE MESQUITA, et al,  The Logic Of Political Survival (2003).


Why Neither Party Can Back Down on Garland

April 12, 2016

Why is blocking the Garland nomination to the Supreme Court so important to them that most Republicans won’t even meet with him let alone agree to hold a vote? Many probably think it is about gay rights and abortion. But there is much more at stake for both parties.

After the Civil War, a very different Republican Party was anxious to secure voting rights for African-Americans. They explicitly addressed the voting rights of the former slaves in both the Fourteenth and Fifteenth Amendments and addressed it by implication in several other clauses as well. Those Republicans, committed to freedom and equality, understood that if the states of the former Confederacy could exclude African-Americans from voting, the former secessionists could retake southern government. Even more important, southern control of the House of Representatives would be strengthened, because the former slaves would count as full and equal human beings in the census and therefore in the apportionment of seats in the House. If that greater southern representation could be controlled by the white secessionists without Black votes to contend with, the former secessionists would control Congress.

Republicans have now switched positions. They still want to control Congress by controlling who can vote, but now by excluding everyone except white voters and undercounting everyone except Republicans. The Court has given them the power to do that. First, the Court chose George Bush for President, stopping the count of the actual votes in Florida. It refused to subject gerrymandering to any legal standard, even though there is now a very precise formula defining the extent of gerrymandering. It has taken the lid off every measure that descendants of the former Confederacy can impose to prevent African-Americans from voting, opening the polls only when it is difficult for them to get there, moving polling places to make them harder to reach, and requiring documents for registration that are costly in both time and money to obtain. That’s the dictator’s game where the officials choose the voters instead of the voters choosing the officials. It shreds democracy. It seems it is all the Republicans have left. And if choosing their voters turns out to be insufficient, the Court has unleashed the flood of corporate treasuries on politics and undercut labor’s ability to survive as a counterweight.

Choosing their voters, and controlling political money to favor Republicans are their biggest motives for wanting to control the Court – it protects their seats and their control of states and Congress. But there are other motives. The Court has shredded the protections of ordinary citizens in product liability, fraud and breach of contract cases. It has shredded the responsibility of Republicans’ corporate friends in antitrust liability and responsibility for securities fraud. The Court has become the major enabler of corruption, a giant kickback to friends of Republicans.

If one adds Republican preference for the conservative justices’ attack on abortion and gay rights, and their defense of school segregation, the Court has defined virtually the entire Republican agenda, its social agenda, its attempt to subordinate democracy to their dominance, and its cozy relationship with corporate America. It gives the rest of us very strong reasons to stop them and to get the Court back in support of democratic government, especially taking back the Court’s blessing for legally converting a vocal minority into national rulers. It’s time to stop them in the name of democracy.

— This commentary was broadcast on WAMC Northeast Report, April 12, 2016.

 

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