How Retired Justice David Souter Can Save the Supreme Court

The reputation of the United States Supreme Court is in trouble. Americans’ approval of the Court dropped fifteen points from 2009 to 2011, according to the Gallup Poll. Faith in the Supreme Court is dropping right along with confidence in government as a whole. Less than 2/3 of Americans say they trust the judicial branch, Gallup says.

And with good reason. Beginning with Bush v Gore in 2000, the court has issued a series of starkly partisan rulings in favor of conservative and corporate causes.

The decision of the high court that has most inspired outrage and derision in recent years is Citizens United. The Supreme Court rewrote the First Amendment to equate money spent on influencing elections and lobbying elected officials as a form of free speech under the First Amendment. Then the Court granted corporations the same First Amendment rights as humans. This twofer has unleashed a spree of legalized bribery by corporate America that will reach epic proportions in elections this year. It’s also ignited a grassroots firestorm. Where’s Our Money, and many other organizations, are backing a Constitutional Amendment to restore the primacy of humans to American Democracy.

As Justice John Paul Stevens pointed out in his blistering dissent to the majority’s opinion in Citizens United, the decision overturns a hundred years of  Supreme Court rulings upholding restrictions on corporate campaign spending. Such a sudden and profound reversal in what the Constitution supposedly means is an offense in itself. It flouts a core principle of the American judiciary, known as “stare decisis,” which requires judges to respect the judicial decisions of their predecessors. “Stare decisis” is the basis for public faith in the integrity and honesty of judges and courts.

Perhaps for that reason, the Citizens United decision seems to have inspired several former justices of the Supreme Court to speak out.

In late May, now retired Justice Stevens, in a speech at the University of Arkansas, condemned the majority’s opinion in Citizens United as internally inconsistent because it leads inexorably to the conclusion that “the identity of some speakers may provide a legally acceptable basis for restricting speech,” something that can’t be squared with the text of the First Amendment – even as interpreted by the Republican majority in that very case.

Stevens also defended President Obama for taking on the Citizens United decision in his State of the Union speech in 2010, right in front of several of the justices. Which may or may not have something to do with why Stevens was at the White House last week to receive the Medal of Freedom. Stevens took the opportunity to again criticize Citizens United.

Another retired justice has also weighed in, perhaps involuntarily. As Jeffrey Toobin reported in the New Yorker two weeks ago, Citizens United started out as relatively modest challenge to a federal campaign finance law. Supreme Court Chief Justice John Roberts and his conservative fellow travelers on the Court subsequently decided to use the case as an opportunity to rewrite the First Amendment in favor of big corporations. But Justice David Souter, a fiercely independent and revered jurist, objected to this tactic. According to Toobin, Souter, scheduled to retire in June, 2009, “wrote a dissent that aired some of the Court’s dirty laundry. By definition, dissents challenge the legal conclusions of the majority, but Souter accused the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.” Toobin describes Souter’s draft dissent as “an extraordinary, bridge-burning farewell to the Court.”

To avoid a published dissent that would have profoundly questioned the integrity of his Court, Chief Justice Roberts set the case for re-argument on June 29, 2009.  This highly unusual move kicked the decision over until the next court term. Toobin says that Roberts did this knowing that Souter would be gone by then.

The source for this explosive reporting could be Justice Stevens... or it could be retired Justice Souter himself.

Souter has donated his papers – including presumably his draft dissent in Citizens United – to the New Hampshire Historical Society. Unfortunately, he has barred any access to them for fifty years.

We can’t wait that long. It’s hard to estimate how much damage to American politics will be done between now and 2056. A nation dominated by corporations and mega-wealthy CEOs for the next half-century will look a lot worse than even the corrupt system in effect today.

And the erosion of trust in the integrity of the Supreme Court is something all Americans – not merely we lawyers devoted to justice – should be alarmed about. The judicial branch used to be the one branch of government where the average person could take on City Hall or a giant corporation and expect to be treated equally, free of political influences. Lose that option, and what’s left for the 99%?

Retired justices typically refrain from criticizing their former colleagues. A sense of decorum, and the sanctity of the judicial process, mandates a quiet retirement for most departed members of the Supreme Court. But the integrity of the institution itself is now in question. The rule of law is being supplanted by the political preferences of the appointees on the Court. It won’t be long before the monstrous swelling of money in politics spread by Citizens United directly infects the composition of the high court itself. Those who care about the independence of the judicial branch should do everything in their power to save the Supreme Court. This includes justices who have left the Court.

Like everything else in our democracy, exposure is the first step toward healing. Americans deserve to know what is going on behind those closed bronze doors, above which reads the promise, “Equal Justice Under Law.”

Justice Souter should permit the immediate release of his original draft dissent in Citizens United.

Citizens United / Harvey Column - 06/06/2012

Will the Supreme Court Split the Difference on Health Care and Immigration?

"The High Court" (c) Charles Bragg

Last November, the U.S. Supreme Court announced it would hear one of many lawsuits by conservative officials challenging the new federal health care reform law championed by President Obama. At the time, you will recall, very few observers thought there was a serious chance that the high court would invalidate the legislation.

I was among them –until three weeks later, when the Supreme Court announced it would hear the federal government’s challenge to Arizona’s immigration law, which bars illegal immigrants from trying to get a job and gives state cops the power to arrest people suspected of being illegal immigrants. The Obama Administration argues the Arizona law interferes with federal authority to control the nation’s borders.

When I heard that the Court took the immigration case, I was pretty sure I saw a trade-off in the works.

Here’s how I reckoned it: extreme conservatives loathe universal health care (and the President) and want to stop it now, before it takes effect and becomes one of those successful federal programs, like Social Security, that becomes wildly popular and hence impossible to privatize or repeal.  Liberals, by contrast, aren’t crazy about the sorely compromised product that President Obama signed, but they believe that everybody should receive the health care they need, and that the government ought to at least mandate fair rules in the marketplace. Overturning the new law would set liberals ablaze, and give President Obama a powerful campaign issue – activist judges – in the Fall.

On immigration, many liberals are uncomfortable with the harsh and arguably unconstitutional provisions of Arizona’s law. And they remember how the “state’s rights” movement was once a thinly veiled euphemism for maintaining state laws that discriminated against African Americans. But conservatives strongly support the right of Arizona to take extraordinary measures to stop illegal immigration. Overturning the Arizona statute would anger the conservative base.

See where I’m going here?

By taking both cases within a few weeks of each other, the Republican majority on the Supreme Court gave itself the kind of political cushion it didn’t have when it handed the presidency to George W. Bush in Bush v. Gore.  The high court can grant conservatives the massive victory they seek by invalidating federal health care reform, and then disappoint them by ruling in favor of the federal government in the Arizona case.

“See! Impartial!” the pundits will trumpet;  “this proves that Supreme Court ‘judges are like umpires,’” as now Chief Justice John Roberts put it during his confirmation hearings on Capitol Hill in 2005.  “Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules,” he said at the time, and it sounded reassuring.

“Split the difference” maneuvering is a common feature in American politics. I've seen it in action ever since I first worked on Capitol Hill in the Seventies. The lawmaker votes against a bill – disappointing some – only to vote for a different bill a few days later, pleasing them. All is forgiven, or maybe not; either way, it's portrayed as proof of "independence": “If both sides are mad at me,” the politicians’ old saw goes, “I must be doing something right.”

That may fool some of the people some of the time, but such tactical machinations are of course completely improper in the judicial branch, where justice is supposed to be blind and decisions made based on the merits of the case, not whether “the base” will be thrilled or disappointed, or both.

As a lifelong student of the law, I hope I’m wrong about the U.S. Supreme Court. Those who devote their lives to justice, as most lawyers one way or another must, can only rue the public’s distrust of the judicial process.

That’s growing, and no wonder. Some conservatives indiscriminately berate “judicial activists” on the bench. Meanwhile, corporations spend increasingly vast sums of money belittling judges, juries and lawyers in the quest to pass legislation repealing the average American’s right to hold wrongdoers accountable in a court, which they call "tort reform."

And in a little noticed part of its infamous Citizens United decision, the Supreme Court granted corporations the First Amendment right to campaign for or against judges as if they were politicians. Super PACs are now targeting justices whose rulings aren’t pro-business enough – as if “pro-business” is a constitutional imperative unto itself.

I checked the Constitution – it’s not in there.

Unfortunately, what’s transpired since last winter gives me little reason to believe that the current Supreme Court will put respect for precedent over politics. During three days of hearings last month, the notion that the Supreme Court would invalidate the federal health care law went from being a right wing fantasy to a possible, even likely, outcome based on the questions and comments of the Republican justices.

In fact, after the hearing on the immigration law last week, it looked to many like the Supreme Court was prepared to rule in favor of Arizona.

The Conventional Wisdom now has the Court dumping heath care reform and upholding the immigration controls, making it a clean sweep for the anti-federal government conservatives. After all, members of the Supreme Court cannot be held accountable for their actions, short of impeachment. So why would they care whether they look like they’re “balanced”?

So much for my theory.

On the other hand, a political version of one of the laws of quantum physics may be at work on the Court at this very moment. The Heisenberg Principle posits that the mere observation of atomic particles changes their course. Since its astounding determination that the Constitution protects corporate money, the Supreme Court has come under a nearly unprecedented degree of criticism. Perhaps the public scrutiny is beginning to have an effect.

At least two members of the Court itself have said they want to reconsider it (PDF). Justice Anthony Kennedy, the “swing vote” on the bench, may end up unwilling to join in a wholesale re-engineering of constitutional law.  Some experts suggest that Chief “Umpire” John Roberts might be sensitive to how history will view his stewardship of the institution.

So I still wouldn’t be surprised to see a “split the difference” strategy play out in June, when the Supreme Court is expected to issue its decisions on both cases, just five months from the election.

Citizens United / Harvey Column / Supreme Court - 04/30/2012

Re-Bending the Moral Arc of the Universe

Thanks largely to the Occupy movement, the disparity between the incomes of the wealthiest Americans and everybody else – now a chasm of historic proportions – has exploded onto the national consciousness. Even the Republican presidential candidates have stumbled into the fray; motivated by the fact that the current frontrunner is a financier, they are arguing over what they insist are the differences between “venture” capitalism (good) and “vulture” capitalism (bad).

Debating the role of finance and speculation in our economy in this election year is a bit of good news for beleaguered Americans who have been steadily losing their economic standing for decades and encouraged to offset that long decline through borrowing on credit cards and homes – until this house of cards collapsed in 2008.

This is a discussion that President Obama should embrace for reasons that transcend the usual relentless drive to get re-elected. Obama has frequently recalled Martin Luther King’s dictum that “the arc of the moral universe is long but it bends toward justice.” Economic inequality became as much a priority for King as racial inequality towards the end of his life. As Ron Suskind points out in his masterly assessment of President Obama’s first years in office, Confidence Men, King wrote that, “‘the contemporary tendency in our society is to base our distribution on scarcity, which has vanished, and to compress our abundance into the overfed mouths of the middle and upper classes until they gag with superfluity. If democracy is to have breadth of meaning, it is necessary to adjust this inequity.”

That adjustment is now a matter of great urgency, because the arc of the moral universe has been twisted away from justice.

The middle class is no longer riding the coattails of the rich. To the contrary, the American dream – that through hard work one can hoist oneself up from modest beginnings or even poverty to a better life – has vanished. The Wall Street Journal reports that the economic recovery may take generations. LINK. Saturday’s New York Times contains an interactive feature that illustrates the deepening divide between the wealthy and everyone else. It lets you check out which professions are more likely to usher you into the 1% club, and how much you need to make to qualify as a member of the 1% in various cities throughout the country. ’

Readers' comments to the article are poignant in their reflection of the profound economic struggle so many Americans are facing. Not all those among the 1% are defensive; indeed, many who might be in the 1% themselves point out that when it comes to the distribution of wealth, and the opportunity that wealth provides, it’s really the .01% at the topmost pinnacle vs. the 99.99% – a distinction the data confirms.

Whatever the numerical pivot point, the destruction of the middle class in this country is a stunning transformation that King would have seized upon. As a community organizer, he understood the importance of calling out inequality wherever it is found in order to engage the powerful force that is the American people. Demanding the attention of the affluent, and their intervention, King said, “Injustice anywhere is a threat to justice everywhere.”

Contrary to some pundits and outspoken advocates of the .01%, challenging the increasing distance between the “haves” and the “have nots” – now that the category of “I have because I borrowed to get it” has been foreclosed – isn’t class “warfare.” As the New York Times pointed out: “Class reality has nothing to do with class warfare.”

The super-elites do not want the presidential candidates even to broach the subject of income inequality because they understand, as King knew, that the discussion inevitably will lead to a national demand for action by the 99.99%, which, to this point, is disorganized, fractured and only dimly aware of the strength they might wield if they were united.

Consider this historical example. Back in the mid-1980s, auto insurance rates in California were skyrocketing. Auto insurance companies weren’t just jacking up everyone’s premiums; they were basing rates on where a person lived, rather than their driving safety record. So people who lived in low-income neighborhoods often paid more for the insurance they were required by law to buy – if they could afford it at all. People who couldn’t afford it – lower middle class and the poor – were surcharged with a penalty for not having had prior insurance when they later scraped the money together to buy it. Not surprisingly, there were lots of uninsured motorists on the road, which forced up the price of insurance for those who did buy it. It all came down to one problem: insurance companies were unregulated and free to impose arbitrary prices. But the insurance lobby was able to block any reforms in the state legislature by pitting urban vs. rural drivers, and the middle class against the poor.

California voters, presented with the opportunity, were not so easily manipulated. By directly attacking and then addressing the inequities in the insurance marketplace, Proposition 103 educated and united the constituencies: the 1988 measure mandated an across the board, twenty percent rollback of auto, home and small business insurance premiums. It also ended zip-code based premiums for auto insurance. Everyone saved money; the only losers were the insurance companies. The industry spent an unprecedented $63 million on advertisements scapegoating the urban and, with a thinly veiled racial tinge, the poor. But the strategy didn't work. The voters saw through the industry’s cunning and passed the initiative, with conservative Republicans in Orange County joining Democrats in Los Angeles to provide the margin of victory.

As a candidate in 2008, Obama promised that the presidential election would be meaningful to the vast majority of Americans who had been disenfranchised by the corrupt political system that precipitated the financial collapse. But he failed to wield his victory as a sword on behalf of those Americans. Now he has a chance to win a second chance to do so. He faces a much tougher battle this time around, among other reasons because corporations are far more deeply entrenched in the guts of the democracy, thanks to the U.S. Supreme Court’s decision in Citizens United, which has unleashed the furious, dominating power of corporate money in electoral campaigns.

The nation’s future cannot be dictated by the 1% and their money  – not if the country is to retain the democracy that was bequeathed to us by the Founders. If Obama or some other candidate engages the citizenry in a debate over the foundational issue of economic inequality, and offers a vision of democracy in which regular people are back in charge – starting with a constitutional amendment restoring the primacy of humans over money in the electoral process – he will be able to lay claim to having re-bent the moral arc of the universe traced by King.

Citizens United / Harvey Column / Occupy / Outrage / President Barack Obama / Supreme Court - 01/16/2012