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Earlier this week, a divided U.S. Supreme Court reversed a ruling by the Montana Supreme Court that would have weakened the Citizens United by justifying regulation in an environment of corruption. SCOTUS reversed the Montana ruling by deciding to not hear an appeal of a lower federal court ruling. In doing so, the Court affirmed its committment to Citizens United.
Justices Breyer, Ginsburg, Sotomayor, and Kagan voted with the majority to not to hear the case, and they have received some criticism for that vote.
The argument being made by some opponents of Citizens United is that the Court should, at least, have heard the arguments justifying Montana’s ruling. They believe that the corruption of our government is such a compelling reason to limit the Court’s ruling in Citizens United that they could have been successful if only the Court had listened to arguments.
But the four “liberal” Justices did not vote to give certiorari even though they wanted to reconsider Citizens United. Justice Breyer wrote, “Were the matter up to me, I would vote to grant the petition for certiorari in order to reconsider Citizens United or, at least, its application in this case.” But he did not want to do so now, saying, “given the Court’s per curiam disposition, I do not see a significant possibility of reconsideration. Consequently, I vote instead to deny the petition.”
The five Justices who opposed the Montana ruling intend to allow financial contributions and corporate spending to control the political process even in the face of corruption. The four Justices understood that the majority would not reverse themselves. Furthermore, the “liberals” were afraid that, if the case was heard, a subsequent ruling might serve only to strengthen Citizens United even more, and they did not want to take that risk.
Thinking about that, I’m convinced that we probably dodged a bullet. For those of us who want to quash Citizens United, those four Justices did us a favor in spite of ourselves. If we’d gotten our way, we might have even bigger problems than we have now.
– David Dickinson
28 Comments
Another great victory for the pathetic fungus that represents the leadership of the liberal class.
You’re kidding, right? That is just more of the same old “we can’t do anything so don’t bother to fight.” Both repugs and dims were unhappy with the ruling, so there might have been a little pressure there. Besides, when do you stand and fight? This is just obamaism writ small.
People are already disgusted with the tenor of the 2012 campaign, and it’s just getting started. By the time SCOTUS heard the Montana case the disgust with the effects of Citizens United would be even more intense, and people would remember which justices inflicted CI on them.
The fact is that there are no longer any true liberals on the Supreme Court. The true Court liberals of another era would have certainly voted to hear the case.
Agree. There are no longer any true liberals on the Supreme Court. The true Court liberals of another era would have certainly voted to hear the case. Recommended diary for the good summary.
I have enough faith in Ginsburg and Breyer to believe they did what was best. They vehemently oppose CU. I trust they know of other challenges which may be brought whereas had they granted the writ and CU was revisited they absolutely knew the gang of 5 would go even further. Their votes make it clear that they are saying they have no faith in bthe other 5 making any impartial judgement in the matter. It’s as close to a condemnation as they can allow.
“It’s as close to a condemnation as they can allow.”
No. Justices from another era would have voted to hear the case and then clearly, thoroughly, and eloquently condemned it. You do not have to go back very far in history to find plenty of examples of this.
I am sick to the point of being ill of “The most we can do is drop a few subtle hints.”
There are no progressive justices on the Supreme Court. Funny how Rush Limbaugh is more upset about the Supremes than “liberals” are. He oughta love ‘em. That would be bad for ratings, though.
I’m baffled. What more was there left to give away?
The stupidity of most of the above comments is representative of the things that have driven traffic away from FDL in the last 12 – 18 months.
Perhaps the most fundamental rule of legal practice is, don’t pick a fight you’re likely to lose. Politics is where one takes on unwinnable battles, because there’s always tomorrow. In legal matters, there is a finality to rulings, especially at SCOTUS.
The left is as afflicted by fundamentalists as the right, though at least on the left a predominance of common sense allows the movement to keep inching forward.
I’m baffled too. If a reconsideration had resulted and the 5 had strengthened it still further it would have been a political outrage. Perfect for the Democrats to run on, and perfect for increasing the chances of a return to a Democratic majority, and a subsequent move to impeach at least two of the 5 CU Justices. The Court’s about politics now and it needs to be kept under pressure. The more it’s forced out into the open; the more likely it is that some of the five will see the pressure building and back off. Particularly Roberts, Kennedy, and even, perhaps Alito. The only ones who, in the end would be immune to pressure are Scalia and Thomas.
Nice description. Except that you are insulting Fungus by associating them with the sellout “liberal class”.
Word!
I read this interesting piece from Doug Henwood which debunks the liberal class’ “ZOMG !!! Looky there ! Supreme Court” fearmongering :
http://lbo-news.com/2011/06/20/courts-the-popular-angle/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+LboNewsFromDougHenwood+%28LBO+News+from+Doug+Henwood%29
Yeah, like the Supreme Court has any credibility left among the public.
Calling Sotomayor and Kagan “Liberal” is a huge stretch for me:
Sotomayor, first appointed to the Federal bench, by Republican George Bush, voted with the majority that alleged smell of Marijuana smoke trumps the 4th Amendment to the US Constitution. Her position does not fall short of Fascism, and Fascism is not Liberal.
Monsanto’s Kagan was claimed to be a Law Professor, and the President who appointed her was claimed to be a Constitutional scholar. You would think that a Law Prof and a Const scholar would know that, if you appoint someone who worked on the briefs for the “Liberal” side, then that person won’t be able to vote on those cases, handing them to the far-Right.
Can you imagine what trouble this country will be in if the George Bush/Obama/Romney team is allowed to appoint more Supreme Court Justices?
Starting by calling a disagreeing opinion stupid is a pretty good indicator that you have nothing to offer beyond name calling.
I have been a member of the Georgia and Federal bars since 1977. Perhaps you did not read the newspapers, but Citizens United was a clear loss. This was a chance to change and at the very least restate a less corrupt position with even more evidence. The opportunity was cowardly backed away from.
If you listen to shallow talking points of OFA we have been making progress. Examining the details, however, reveals a different story. For documentation see
Civil Rights – http://newprogs.org/blog/2011/11/09/civil-rights-under-democraticrepublican-uni-party
Economy – http://newprogs.org/blog/2011/11/10/economy-under-democraticrepublican-uni-party
Economic Graphs – http://newprogs.org/blog/2012/03/02/economic-graphs
Education – http://newprogs.org/blog/2012/01/14/education-under-democraticrepublican-uni-party
Environment – http://newprogs.org/blog/2011/11/08/environment-under-democraticrepublican-uni-party
Health Care – http://newprogs.org/blog/2012/04/03/health-care-under-democraticrepublican-uniparty
Transparency – http://newprogs.org/blog/2012/02/27/transparency-under-democraticrepublican-uni-party
Unions – http://newprogs.org/blog/2012/02/05/unions-under-democraticrepublican-uni-party
War – http://newprogs.org/blog/2011/11/11/wars-under-democraticrepublican-uni-party
Whistleblowers – http://newprogs.org/blog/2011/11/09/whistleblowers-under-democraticrepublican-uni-party
The time to fight is when we can control the outcome. I’m not saying “don’t fight”. But putting Citizens United before five Justices whom you know in advance want to make it worse and not better doesn’t seem like a very smart thing to do.
The only avenue that we have left open to us is a constitutional amendment. There is no other way to solve this problem.
“Pathetic fungus”? Why are you being so kind to them? It’s their fault that we won’t be able to expand Medicare to everyone. After all, it was liberals who took the Heritage/Republican mandate and made it their own.
So what would have happened if the Court had heard the case? I hope you’re not suggesting that there might have been a snowball’s chance i Hell that the five right-wing nutjobs would have weakened Citizens United and not used the opportunity to strengthen it.
Forget about the Court. It’s a done deal. There’s nothing to be gained there. The only way to deal with the problem is with a constitutional amendment.
That’s interesting logic. But citizens’ outrage is pretty meaningless right now. It’s not like the politicians really give a damn about it. And if Citizens United had been strengthened, our outrage would mean even less to them.
We are too easily manipulated by our fears, and as long as they have the money, they will be able to use our fear that the other guy is worse to move us farther and farther to the right.
The only way to solve our problems is with a constitutional amendment forbidding private spending on public campaigns, and for us to stop voting for the lesser evil.
Wow. You’ve taken Occam’s razor and nuked the living crap out of it.
The “news to me” factor in this post: Wait … you think there are liberal justices on the Supreme Court?
Me. I think it’s more simple than that. Each of these justices was appointed by a party that VERY MUCH wants to rake in as much of this cash as they possibly can. They are not jurists, they are partisans. The justices are simply doing what they were placed on the court by unapologetically corrupt politicians to do.
On the record, Sotomayor, Kagan, Breyer, and Ginsberg are opposed to the CU decision, and would reverse. Progressives badly need that done. Sotomayor, Kagan, and Breyer may not be “liberal” which is why I put scare quotes around the word, but they do seem to be against CU, and right now that’s the priority when it comes to the Court.
I don’t see how you can state that with such certainty. It is 5-4. Only one of the five has to be replaced with an anti-CU Justice; that’s all it would take. Of course, we should work towards a CA to put a stop to this; but this would take years.
So, we should also produce a barrage of legislation to stop it. For example, what if the Congress passed a law allowing only certain types of corporations to engage in Interstate commerce, specifically artificial persons incorporated with highly restricted free speech rights. The Court would then have to balance the Interstate Commerce clause against its interpretation of the corporation rights under the first amendment.
The decision would not be obvious since the Government would not be preventing corporate free speech. Instead, it would just be saying that the ability of a business corporation to engage in Interstate Commerce is a privilege, not a right. And that to get that privilege the corporation would have to constitute itself in the required way or forget about Interstate Commerce. Whatever else such a law would do it would take some time to work through the Courts, providing more time for the CA.
Another strategy we could try is to focus on certain States, say Delaware, Nevada, and New York, win state level elections, and then pass legislation specifically defining corporate artificial persons as entities entitled to exercise certain forms of non-political speech only. That would at least cause consternation among the corps, since so many of them are incorporate in Delaware and it would take some time to organize moves to other states. States imposing these restrictions might also prohibit foreign corporations (out of state corporations) from doing business in their states unless they conformed to the free speech restrictions.
If such restrictions were passed, I don’t think the Courts could just ignore them, since corporations are artificial persons constituted by the States. They continue to exist only at the pleasure of the various states. So, I think the Court would have a big problem deciding that the States only have the right to charter artificial persons with full free speech if the state legislature and the Governor instead choose to create artificial persons with only some of the rights of natural persons under the constitution. After all, there’s nothing explicit in the Constitution that gives the Federal Government, including the Supreme Court to tell the states what kinds of artificial persons they have the power to create.
If we won a battle like this in New York or California, then major national corporations would take a real business hit, if they wouldn’t conform to the speech rules of the State for state-chartered or foreign corporations. Again, this kind of thing might not hold up, but it would keep the Court busy while the CA was moving through. It’s also a form of continuing legal resistance; basically telling the Court. No, we are not accepting CU, and we will resist and resist and resist it. And the more stubborn you are, the more unpopular you will become until finally the outrage in the country will be great enough to impeach you and replace you with Justices who will recognize that we will never accept and never rest until this ridiculous decision giving corporations the same rights of expression as natural persons is overturned.
If
then how in hell are we going to get a CA passed? I think your position is contradictory. It’s far easier to get a law passed in Congress or in the States than to get a CA passed. The right know this, since they’ve been unable to get right-to-life, or balanced budget amendments passed, but they’ve certainly been able to get state-level support for both of these things.
I think everyone knows (who is paying attention) that Breyer, Sotomayor, Kagan, and Ginsberg opposed the Citizens United ruling. Their dissents in that case were pretty vehement, as far as Justices go.
Have you asked yourself what the five Justices in the majority might have done if they’d had an opportunity to make things worse?
It is a certainty. First of all, the five judges who formed the majority in Citizens United stayed execution of the Montana ruling last February before they were briefed. They did not want that ruling to take effect.
I provided links. You should read the information available. Roberts, Alito, Scalia, Thomas, and Kennedy want money to run our government, not the voters. Kennedy even said that corruption is not a problem.
But your insistence that we produce “a barrage of legislation” is quite puzzling. Perhaps you don’t get it: ANY LEGISLATION LIMITING CORPORATE BRIBERY WOULD BE RULED UNCONSTITUTIONAL. In fact, it already has been — in Citizens United! Obtaining such legislation would not only be a wasted effort, it would be a waste of valuable time.
The ONLY way to fix the problem is with a constitutional amendment.
Perhaps you don’t understand what the Supreme Court does. When they say that a law restricting corporate bribery is unconstitutional, that means that passing another law to do the same thing would also be unconstitutional. So why would you want to pass more laws that do what has already been ruled unconstitutional?
Unless you have an idea that isn’t unconstitutional, the only way to solve the problem is with a constitutional amendment.
I am waiting anxiously to hear your solution to the problem.
Good show ES, but when will a C.Amendment pass the hurdles of a corporatist congress, the Tea-party states and corporate media? The elite would probably protect C.United vigorously. The only solution I see is anti-depressants and street protests like OWS. You know.