Thom Hartmann calls them “five unelected, unaccountable kings in black robes.” I call them five results-oriented corporatists who will twist their legal arguments into any pretzel logic necessary to recognize, and expand, the legal and Constitutional rights of corporations and the very wealthy, and to limit or take away completely the legal and Constitutional rights of natural human beings.
Whatever you call them, on the five-year anniversary of the Citizens United decision this week, it should be clear to any objective observer that the five Justices in the Conservative majority on the United States Supreme Court — Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito — are arguably the most radical extremists ever to sit on the Supreme Court bench.
You have to look back to the Supreme Courts of the now-infamous Lochner era (1897 to 1937) to find a group of judicial extremists to rival today’s “felonious five” in their disregard for precedent and their willingness to “legislate from the bench” as they impose highly unpopular – and nationally damaging – laissez-faire economic theories on the country.
Like the Lochner era Courts, which created spurious legal doctrines such as “substantive due process” and “liberty of contract,” and then used those newly-invented legal doctrines to strike down any legislation that burdened corporations or disturbed the existing economic hierarchy, today’s Supreme Court has expanded its own spurious legal doctrines. “Corporate constitutional rights” and “money as speech” have bestowed inalienable Constitutional rights, and legal rights, on corporations and the moneyed elites who profit from them.
Five years after Citizens United, corporations continue to run roughshod over the rights of We the People, and as a result, our small “d” small “r” democratic republic is being legally changed, before our eyes, into a corporate plutocracy.
A Little Recent History
The pro-corporatist activism on today’s Supreme Court has its roots in a 1971 memorandum written for the U.S. Chamber of Commerce by a tobacco industry lobbyist named Lewis Powell. The memo, which was entitled “Attack on the American Free Enterprise System,” called on the Chamber to engage in a sustained and concerted campaign to use an “activist-minded Supreme Court” to shape big business-friendly social, economic and political change. This document is often referred to as “The Powell Memo.”
That same year, Richard Nixon nominated Powell to the U.S. Supreme Court. Once on the Court, Justice Powell (a Democrat) put the plan that he had laid out in “The Powell Memo” into full effect. He joined the Court’s per curium decision in Buckley v. Valeo (1976), in which the Court created the spurious legal doctrine of “money equals speech,” and then used that legal doctrine to strike down the federal government’s first ever attempt at regulating political fundraising and political spending through the use of comprehensive campaign finance reform.
Two years later, Justice Powell took his plan one step further, in the decision he wrote in First National Bank of Boston v. Bellotti (1978). In that case, the Court struck down a Massachusetts law that prohibited corporate donations in ballot initiatives unless the corporation's interests were directly at stake in the election. The Court’s rationale for the decision was based on the Court’s findings that corporations have an inalienable right, under the First Amendment, to make contributions to ballot initiative campaigns. Conservative Chief Justice William Rehnquist wrote a scathing dissent arguing against “corporate personhood” in this case.
When Chief Justice Roberts and Justice Alito were elevated to the Supreme Court in 2005, the all-out judicial assault on the rights and the interests of the American people began in earnest. Here is a short, non-inclusive list of the havoc-wreaking cases that the ultra-corporate Roberts Court has decided:
District of Columbia v. Heller (2008): At the urging of well-funded lobbyists from the National Rifle Association, the Supreme Court “found” an individual has the right to keep and bear arms under the 2nd Amendment. The court's landmark 5-4 decision wiped away years of lower court decisions holding that the clear intent of the Second Amendment was to tie the right of gun possession to service in a “well-regulated militia.”
Citizens United v. Federal Election Commission (2010): The Supreme Court, again in a 5-4 decision, ignored decades of legal precedent to strike down those parts of the McCain/Feingold campaign finance reform law that regulated “independent expenditures” and "electioneering communications" made by corporations. The Supreme Court based its decision on the specious “finding” that corporations, including nonprofit corporations such as Citizens United, Inc., have inalienable rights of free speech under the First Amendment.
Shelby County v. Holder (2013): The Supreme Court again overstepped Constitutional boundaries when, in a 5-4 decision, it overturned Section 5 of the Voting Rights Act of 1965, which requires certain states and local governments to obtain federal preclearance before implementing any changes to their voting laws or practices. The Supreme Court’s decision is unprecedented in that it was a flagrant violation of the separation of powers. After holding extensive hearings on the matter, Congress reauthorized the Voting Rights Act in 2006 because it found that the protections of the Voting Rights Act were still necessary to protect minority voters from being disenfranchised by state and local governments, and that “preclearance” was an effective tool in preventing discrimination.
The Supreme Court is an appellate court. It is supposed to decide cases by applying the law to the existing facts. The Supreme Court has no fact-finding power of its own. The decision in Shelby County is based on the Supreme Court’s own finding of fact that Voting Rights Act was no longer necessary. This was one of the most egregious examples of a Court legislating from the bench in American history.
McCutcheon v. FEC (2014): In another landmark campaign finance case, the Supreme Court struck down Section 441 of the Federal Election Campaign Act, which imposed a biennial aggregate limit on individual contributions to national party and federal candidate committees. In so doing, the Supreme Court’s conservative majority decided that the First Amendment, for all intents and purposes, gives wealthy donors carte blanche to buy our public elections.
Harris v. Quinn (2014): Again in a 5-4 decision, the Supreme Court ruled that home-care workers in Illinois cannot be forced to pay dues to a union if they're not union members, because they aren't full-fledged public employees like cops, firefighters and teachers. The Harris decision appears to be limited to home-care workers, so it is not the “knock-out punch” to public-employee unionism that many people feared was coming. But it is a step in the direction of overturning the 1977 decision in Abood v. Detroit Board of Education, which essentially made “right-to-work-for-less” the law of the land. Justice Alito, who wrote the Harris decision, suggested in that opinion that the Conservatives had Abood in their sights.
Burwell v. Hobby Lobby (2014): Finally, the Supreme Court found that for-profit corporations were exempt from laws their owners religiously object to if there is a less restrictive means of furthering the law's interest. The decision was based on an interpretation of the Religious Freedom Restoration Act, so it did not address whether such corporations are protected by the free-exercise-of-religion clause of the First Amendment of the Constitution. It was the first time the Supreme Court had ever held that Corporations had legal rights to freedom of religion.
This nonsense, quite frankly, has got to stop. The Supreme Court is systematically stripping Constitutional Rights from real, live human beings and giving those rights to Corporations and a very small group of plutocrats. There are a lot of living, breathing human beings who belong to a lot of issue advocacy groups and whose "oxen were gored" in the decisions discussed above. It's time for those groups, and so many more, to begin working together to take back the political power that the Supreme Court has stolen from the American people. The only decisive way to do that is, for starters, to amend the U.S. Constitution so that it clearly and unequivocally states that 1) inalienable rights protected under the Constitution belong to human beings, and 2) money is not speech.
If you want to find out more about this effort, visit here. Together, we can Move to Amend.
Stephen A. Justino is a veteran trial lawyer with over 20 years experience, and serves as coordinator of Denver's Move to Amend chapter.