The argument that money should be restricted in advocating one's political speech is laughable when it is advocated by an employee of the NYT, a multi-billion dollar corporation that spends its revenues to advance its political views. No, Ms Greenhouse, the Supreme Court will not permit the media and incumbent politicians to have a monopoly on political speech. Diminishing the power of the liberal media is the great accomplishment of the Robert's court. Our constitutional right to free political speech should not be infringed in any way so long as the mass media is permitted to engage in political speech. This is America, not Putin's Russia.
5
It's fine to ask SCOTUS nominees to name past court decisions they admire and those with which they disagree, but what do you do when you get an unqualified candidate who can't name a single court decision? One justice now sitting one the Supreme Court could name ONLY ONE past decision -- Roe vs. Wade -- and then said he had no opinions about it. On top of that, the same nominee was labeled "Unqualified" by the American Bar Association. Yet he made it onto the court after "playing the race card" by accusing the Senate Judiciary Committee of being a lynch mob. He is the Court's most reliably reactionary, regressive voice. He seems to have learned little of past Court decisions, since he is ever ready to ignore precedent to reach whatever opinion suits his conservative views. How sad.
6
Citizens United is related to free speech in the same way that prostitution is related to faithful love and commitment.
5
It will be a help to all of us if any and all Justices who has crossed the age 73 or even 75 now retire. Hopefully, this President has the chance to nominate one or two more Justices to the Supreme Court.
1
Citizens United is so egregious that over-turning it should be a litmus test. Citizens is an assault on the democratic process in a way that makes it more like P v Ferguson than Roe. Shouldn't it be a litmus test that any candidate for SCOTUS reject a return to Ferguson? And what about the separation of church and state? We were a democracy, though a flawed one, before Roe, but I am not convinced that we are a democracy under Citizens United.
3
I don't get it-Republicans want all babies conceived to be born and THEN turn their backs on those parents who cannot afford more children. Why don't they leave people alone to follow their own conscience!
4
If "intellectual brilliance"(however defined) was a requirement for the court few would make the cut. For some time it seems that the primary requirement for the court is to go to harvard or yale-the results have not been good. I would suggest that none of the current members of the court are "intellectually brilliant" or indeed brilliant in any way. Just look at the results in many high profile cases in the last 20 years and the reasoning given in the opinions.
1
Supreme Court justices are appointed for life. Promise them anything, and then follow your conscience.
You say that big money corrupts or appears to corrupt the political process. But I don't think there's much evidence to back that up. My reading on Sheldon Adelson, et al., indicates the strong ideological bent of the billionaire donors and campaign spending by them in support of their favored candidates. These billionaires' money advances their political agendas but there isn't much evidence that it advances their financial self-interests. I think you lose on your corruption argument. Which is why I say that hundreds of millions of dollars is not speech. A few thousand is speech. Hundreds of millions is noise. Big money itself is the problem. The First Amendment protects discourse. It does not protect lavish spending that undermines discourse.
1
More to the point: absolutely nothing Hillary Clinton says can be believed. She is famously completely dishonest, baldly lying and then dissembling about the lying when caught.
The statements she has made about the CU decision are not credible coming from her. Hillary is 100 percent at the heart of Washington DC corruption, she is entitely a product of it, and she is going to be one of the biggest beneficiaries of the CU decision to date.
Its bizarre that what she said would be seen as anything other than yet another in a long list of manipulative lies she's told.
The statements she has made about the CU decision are not credible coming from her. Hillary is 100 percent at the heart of Washington DC corruption, she is entitely a product of it, and she is going to be one of the biggest beneficiaries of the CU decision to date.
Its bizarre that what she said would be seen as anything other than yet another in a long list of manipulative lies she's told.
2
It's not the question whether to have a litmus test, but whether we're going to acknowledge openly that there is one already in place. So yes, they should face it for all to see. Corruption as exhibited by Citizen's United alone makes the point beyond refutation.
11
A GOOD LITMUS TEST? If, as the writer states, there is majority opposition to Citizens United across the political spectrum, with supporting data from opinion polls of Republicans, Democrats and Independents, does that constitute the makings of a valid or "good" litmus test? Since any litmus test has its pros and cons, I guess this one does as well. But waiting for a Supreme Court nominee is a cumbersome and uncertain way to go about ending the rule of a law whose intended consequences are so destructive. I'd far prefer that Hillary announce that she would write an Executive Order requiring all political candidates and aspirants to identify their campaign contributors, on her first day in office. That would be a promise with a good degree of certainty and some teeth. Promising a favorable Supreme Court appointee is only a bit less cumbersome than those in Congress introducing yet another Constitutional Amendment with not even the remotest chance of coming into existence. That means that words about a favorable Supreme Court nominee are just so much hot air. I want to hear Hillary say that she will put pen to paper to end the anonymity of campaign funds. Unless, that is, Barack beats her to the punch. Even if it is on the very last day of his Presidency. What a great parting punch that would be!
3
The reasoning employed in the Citizens United decision sounds surreal because it is corrupt attempting to sound rational. Covering up a lie, the Justices used a "logic" one can recognize. It is that of a guilty child. It is transparently deceptive and evasive. It is shameful.
This may ease the "litmus test" anxiety. If a nominee simply be asked if they are a liar and then consider their answer from the perspective of the clumsy "Citizens" decision. If their answer resembles the decision then the candidate is unfit.
This may ease the "litmus test" anxiety. If a nominee simply be asked if they are a liar and then consider their answer from the perspective of the clumsy "Citizens" decision. If their answer resembles the decision then the candidate is unfit.
3
Sure. If he opposes the first amendment, then he shouldn't be confirmed.
There is a very simple process to fix this problem. These "large majorities of Democrats and Republicans" can pass a constitutional amendment over turning citizens united and give congress the right to control political speech. Democrats have already proposed such an amendment.
Oh wait! Who do we trust less than the Supreme Court? Congress!!!
Oh wait! Who do we trust less than the Supreme Court? Congress!!!
4
Retired Justice Stevens, who shares Miss Greenhouse's distaste for the Citizens United opinion, said he was appalled at Mrs. Clinton's litmus test.
2
It would seem, after John Roberts amazing change of mind about stare decisis since his confirmation hearings, that any question to a nominee is fair game.
2
Greenhouse: "The effort will be — as it is already in some quarters of the right — to depict anyone who opposes Citizens United as an opponent of free speech."
Citizens United has nothing to do with free speech and a lot to do with buying elected officials. All Citizens United did was provide greater buying power to the already rich and powerful.
Citizens United has nothing to do with free speech and a lot to do with buying elected officials. All Citizens United did was provide greater buying power to the already rich and powerful.
6
If we are going to take it as self evident fact that corruption (or the equally undesirable appearance of corruption) is more than just quid pro quo bribery, I hope we use the same standard when examining donations to the Clinton Foundation.
Because it would be pretty disingenuous to say that unlimited donations to a political campaign are corrupt because the candidate must favor that person, even if only subconsciously, and then turn around and say the donations to the Clinton Foundation are fine because there is no smoking gun proof of a quid pro quo.
Because it would be pretty disingenuous to say that unlimited donations to a political campaign are corrupt because the candidate must favor that person, even if only subconsciously, and then turn around and say the donations to the Clinton Foundation are fine because there is no smoking gun proof of a quid pro quo.
3
Citizens United is only part of the general travesty that elections have become. In the UK we do not have public financing of elections, and if we did, it would probably only incite a noisy debate about who was entitled to it. We also do not permit television or radio advertising of candidates. Our broadcasters are required to provide fair and balanced coverage. Negative campaigning is subtle if it occurs at all. We hear from politicians what they propose to do if they are in government, not what villains their opponents are. This makes our elections islands of calm compared to yours. Plenty of free speech on posters, billboards, from volunteers going door to door, from the candidates themselves. I think we get the politicians people elect rather than the most malleable money can buy.
2
"Are corporations people? The U.S. Supreme Court says they are, at least for some purposes. And in the past four years, the high court has dramatically expanded corporate rights.
It ruled that corporations have the right to spend money in candidate elections, and that some for-profit corporations may, on religious grounds, refuse to comply with a federal mandate to cover birth control in their employee health plans."
The forgoing excerpt, NPR, clearly describes the weapon of final mass destruction, that killed off any pretense that our government represents the people.
The decades long insidious movement, to disenfranchise the voting populace, for the benefit of the ruling class, bloomed over our nation, like the mushroom cloud from a massive nuclear blast, when the SCOTUS made this ruling.
Just as surely as Obama rode the wave of false promises, to gain the Presidency, Hillary and all of them, party affiliation be dammed, will say and do whatever to gain the same prize.
It ruled that corporations have the right to spend money in candidate elections, and that some for-profit corporations may, on religious grounds, refuse to comply with a federal mandate to cover birth control in their employee health plans."
The forgoing excerpt, NPR, clearly describes the weapon of final mass destruction, that killed off any pretense that our government represents the people.
The decades long insidious movement, to disenfranchise the voting populace, for the benefit of the ruling class, bloomed over our nation, like the mushroom cloud from a massive nuclear blast, when the SCOTUS made this ruling.
Just as surely as Obama rode the wave of false promises, to gain the Presidency, Hillary and all of them, party affiliation be dammed, will say and do whatever to gain the same prize.
When the Supreme Court finds but yet another new right - gay marriage - the drive for an elected federal judiciary will become overwhelming
"Think how refreshing it would be if a Supreme Court nominee actually talked about something during the confirmation hearing."
Refreshing, but hazardous. These are the real rules for Supreme Court nominees and they all know it:
1) Scour your record so that you know what you cannot deny having written or said.
2) Have no opinion or refuse to give one (because it might come up in a case) about anything controversial.
3) Identify anything you said or wrote in the past that will rule you out with senators who would ordinarily vote for an opposing president's nominee anyway, absent an excuse not to, and be prepared to condemn it in whatever words your most aggressive interrogators would use. Justice Sotomayor's retraction of her "Wise Latina" speech, which was actually wise, is a good example.
4) Pledge to follow "the law," as if it were an actual thing written in stone, and not to be "activist."
5) Pledge to follow precedent, even cases with which you disagree, as the "law of the land."
And you will do these things, in your own mind. But, you can't say what you think to Senators you believe are wrong about the law and don't know it.
Also, though I disagreed with the majority opinion in Citizens Union, I think it has little effect on outcomes, if any.
Refreshing, but hazardous. These are the real rules for Supreme Court nominees and they all know it:
1) Scour your record so that you know what you cannot deny having written or said.
2) Have no opinion or refuse to give one (because it might come up in a case) about anything controversial.
3) Identify anything you said or wrote in the past that will rule you out with senators who would ordinarily vote for an opposing president's nominee anyway, absent an excuse not to, and be prepared to condemn it in whatever words your most aggressive interrogators would use. Justice Sotomayor's retraction of her "Wise Latina" speech, which was actually wise, is a good example.
4) Pledge to follow "the law," as if it were an actual thing written in stone, and not to be "activist."
5) Pledge to follow precedent, even cases with which you disagree, as the "law of the land."
And you will do these things, in your own mind. But, you can't say what you think to Senators you believe are wrong about the law and don't know it.
Also, though I disagreed with the majority opinion in Citizens Union, I think it has little effect on outcomes, if any.
In Commodore Vanderbilt's time, which most people agree was rife with corruption, judges could be bought and sold and big money ruled. That was the way it was and the middle class and especially the lower class had no real voice. Citizens United brings us back to that. If one man can finance a candidate to such a large extent without violating the law, such as Rubio, then Rubio is in his debt, and Rubio must do what this man wishes. No, this is not an outright bribe; but, yes, it is now a subtle lawful bribe. Citizens' United paves the way for such legitimate bribes. The Supreme Court ignores this truth. More's the pity.
15
Every article I have read in the NY Times about this favorite punching bag of liberal discontent fails to provide a workable solution. Campaign donations = outright bribery. True enough, but what to do about it? Publicly financed elections would seem to be the answer, but then the Supreme Court effectively stated that would never happen while they are on the bench.
The other alternative is to overrule the Supreme Court with a constitutional amendment. The problem with that is that We the People favor politicians who oppose publicly financed elections for the transparent reason that they profit handsomely from the corrupt status quo. Voters know that but shrug their shoulders and vote for their favorite corrupt politicians anyway.
That brings us 'round to the fatal flaw of democracy: people get what they ask for.
The other alternative is to overrule the Supreme Court with a constitutional amendment. The problem with that is that We the People favor politicians who oppose publicly financed elections for the transparent reason that they profit handsomely from the corrupt status quo. Voters know that but shrug their shoulders and vote for their favorite corrupt politicians anyway.
That brings us 'round to the fatal flaw of democracy: people get what they ask for.
6
Workable solution? Here's one - make explicit that corporations have no constitutional *rights* of any kind (if necessary in the Constitution itself). They can have no rights whatsoever except those enumerated in their respective charters granted by the US or one of the several states AND that charter is required to do business in the US or any of its territories. AND, that charter restricts the corporation to business activities without rights to contribute corporate cash to any purpose except shareholder after-tax profit or another corporation expressly created as a charity with transparent ledgers -likewise restricted from political acts.
Whatever the obstacle, recognize that what we have is broken and needs fixing. If our ancestors could fix the King of England, and slavery, and multiple just (and unjust) wars, then why are we intimidated by these steeenking corporations? We created them, we an demolish or re-create them.
Whatever the obstacle, recognize that what we have is broken and needs fixing. If our ancestors could fix the King of England, and slavery, and multiple just (and unjust) wars, then why are we intimidated by these steeenking corporations? We created them, we an demolish or re-create them.
1
This Court is not eternal. In fact, a few of the justices will leave the bench during the next presidential administration. We don't need to amend the constitution. we need to amend the court.
What really should be enacted is legislation forcing transparency of all political contributions including PACs and any other entity that does political activity, ads, endorsements, funds candidates, etc. and none of this second- and third-hand Committee for Whatever Sounds Patriotic but people's, company's, union's real names with the actual amounts given. If money is speech, well then let's see who's talking. And if they don't want to be seen, then they shouldn't be heard.
13
"And if they don't want to be seen, then they shouldn't be heard."
Tell that to Thomas Paine or the authors of the Federalist Papers.
Tell that to Thomas Paine or the authors of the Federalist Papers.
From SCOTUS "Citizens United v. FEC" Syllabus p. 7, delivered by Kennedy, and joined by Roberts, Scalia, Alito and in part by Thomas (part 1 of 2):
"(b) The disclaimer and disclosure requirements are valid as ap- plied to Citizens United’s ads. They fall within BCRA’s “electioneer- ing communication” definition: They referred to then-Senator Clinton by name shortly before a primary and contained pejorative references to her candidacy. Section 311 disclaimers provide information to the electorate, McConnell, supra, at 196, and “insure that the voters are fully informed” about who is speaking, Buckley, supra, at 76. At the very least, they avoid confusion by making clear that the ads are not funded by a candidate or political party. Citizens United’s arguments that §311 is underinclusive because it requires disclaimers for broad- cast advertisements but not for print or Internet advertising and that §311 decreases the quantity and effectiveness of the group’s speech were rejected in McConnell."
http://www.supremecourt.gov/opinions/09pdf/08-205.pdf
"(b) The disclaimer and disclosure requirements are valid as ap- plied to Citizens United’s ads. They fall within BCRA’s “electioneer- ing communication” definition: They referred to then-Senator Clinton by name shortly before a primary and contained pejorative references to her candidacy. Section 311 disclaimers provide information to the electorate, McConnell, supra, at 196, and “insure that the voters are fully informed” about who is speaking, Buckley, supra, at 76. At the very least, they avoid confusion by making clear that the ads are not funded by a candidate or political party. Citizens United’s arguments that §311 is underinclusive because it requires disclaimers for broad- cast advertisements but not for print or Internet advertising and that §311 decreases the quantity and effectiveness of the group’s speech were rejected in McConnell."
http://www.supremecourt.gov/opinions/09pdf/08-205.pdf
Ms. Clinton stated that “I will do everything I can to appoint Supreme Court justices who protect the right to vote and do not protect the right of billionaires to buy elections”. In my opinion that leaves open the possibility that she will only nominate justices whose record suggests opposition to Citizens United. It does not necessarily mean that she will make it an explicit test.
Of course it should be "a litmus test". As should many other topics. However, the Citizens United has wreaked more havoc, and has the potential to destroy our elections process, than all the other"tests" combined. I feel that it has, perhaps only indirectly, but also directly, put us on the path to dissolution of our government as it exists today. That decision has, even more so, revealed to the American people that we are a "bought' Democracy. No, "Democracy" is not the right word. "A bought form of government yet to be determined" would be a better description. But which, I believe, will lead eventually, to the Second American Revolution, when the people are forced to take back their government by force if necessary. Ms. Greenhouse should bear in mind that the NRA has been quite immobile in thinking, but very successful in recent years: there are now more than 300 MILLION - yes, 300 MILLION, privately-owned firearms in the U.S. As I have often repeated, this is a very good time to be very old......
2
I agree with all you say, except the "to be very old", part, 65 myself, as we older voters represent the dying final opportunity to take back liberty, as we used to know it.
Look at the dearth of comments, clearly indicating a disinterested populace; it will be too late by the time the younger generation realize they have been subjugated.
The political machine alliance, (government / corporations / media), has honed perception management to a point where only the very astute understand what is going on.
Look at the dearth of comments, clearly indicating a disinterested populace; it will be too late by the time the younger generation realize they have been subjugated.
The political machine alliance, (government / corporations / media), has honed perception management to a point where only the very astute understand what is going on.
The decisions made by the Roberts Five of SCOTUS, Citizens United, Hobby Lobby, etc. are so sophomoric and contrary to the very essence of The United States Of America that the obvious solution to our dilemma is not a litmus test for politicians but impeachment of the "Five" and a total disregard for their decisions . It is unthinkable to allow the aberrant choices of five politicized lawyers to overturn a 200+ year old democratic Republic of 330,000,000 people with "reasoning" so dangerous, yet so shallow as to be ludicrous . These "Five" are nothing less than traitors and dramatically more dangerous than organized terrorism . There can be no other valid conclusion!
3
By all means, let's go back to the days when corporations donated with bags of cash. If money wants to have say in politics, it's going to get it one away or the other. Better to have it in the public eye than in the shadows.
2
Citizens United undermined the democratic government most of us want, it is a legitimate litmus test to impose on future appointments to any court. We cannot politely sit back and watch America be undermined by the rich, and we should work to support a government that values the opinions of every citizen, not just the wealthy. I will support Hillary Clinton because I believe she will get to the position to appoint a more responsible Supreme Court Justice.
9
Your reasoning is just one more reason I most likely will vote Democrat next presidential election. A Republican president would just tilt the court more in favour of the wealthy .
"So it seems to me that all a Supreme Court nominee would have to say to a senator seeking to use the First Amendment as a sword would be: “Yes, senator, of course I believe in free speech, even for corporations, but I believe in the real world, too."
Why "even a corporation?" Corporations are creations of government, i.e., of the body politic. They can therefore be destroyed by the body politic. If they can be destroyed, then they can be denied political speech, and therefore denied the ability to pump money into an electoral system that determines the government.
This is all truly stupid stuff. The fact many people are talking like they do -- even Greenhouse -- shows just how far down the Rabbit Hole the extreme right, the plutocrats have taken us.
Why "even a corporation?" Corporations are creations of government, i.e., of the body politic. They can therefore be destroyed by the body politic. If they can be destroyed, then they can be denied political speech, and therefore denied the ability to pump money into an electoral system that determines the government.
This is all truly stupid stuff. The fact many people are talking like they do -- even Greenhouse -- shows just how far down the Rabbit Hole the extreme right, the plutocrats have taken us.
2
"Should a potential court nominee’s view of the 2010 decision erasing spending limits on corporations be determinative?"
Yes. Citizen's United has to go. It is a travesty, and the American public despises it.
Yes. Citizen's United has to go. It is a travesty, and the American public despises it.
1
If we posted what we call elected officials on ebay and sent the collected money say to infrastructure at least the money would do some good. And our government would probably no worse.
1
A the end of the day, wouldn't it be simpler to simply amend the Constitution to say that organizations are not people. More directly, define what is meant by a person, and declare that unless noted specifically, that person is to be taken as what this definition says a person is? We may argue about whether or at what point a fetus is a person, but I doubt sincerely you would find one human being in a thousand who would say that a corporation, union, or the local Elks Lodge is a person.
1
The debate over spending deflects us from considering that the US ceased be a Western Democracy in 1980. The roller coaster ride in the US economy during the Ford and Carter administrations were fair warning from OPEC, Big Oil and International Commerce that we could take our marching orders from them or continue to be devastated by erratic fluctuation in petroleum price and supply while at the same time see the rest of our consumer society destroyed by 18% interest rates. I cannot imagine the last 35 years in America without house and car sales but I imagine that if we had followed Jimmy Carter's advice we would still be a democracy and there would still be food on the table and we would have invested more money in our future by supporting healthcare technology and education.
When we voted for Reagan and Bush the die was cast, we are no longer a democracy and we know the plutocrats will not support Bernie Sanders nor Rand Paul. Riyadh, Zurich, London and Shanghai have more say in how our country is run than all the billionaire and all the billions they contribute to all their impotent politicians. I remember the words from several well informed academics before the 2010 midterms. They told me all that money was not to buy any kind of meaningful legislation but simply to keep certain people out of jail. I believe they were not whistling Dixie.
When we voted for Reagan and Bush the die was cast, we are no longer a democracy and we know the plutocrats will not support Bernie Sanders nor Rand Paul. Riyadh, Zurich, London and Shanghai have more say in how our country is run than all the billionaire and all the billions they contribute to all their impotent politicians. I remember the words from several well informed academics before the 2010 midterms. They told me all that money was not to buy any kind of meaningful legislation but simply to keep certain people out of jail. I believe they were not whistling Dixie.
2
In its yearly 'human rights reports' on other countries, the U.S. addresses and condemns political corruption throughout the world. Needless to say, the definition of corruption we use is much more expansive than simple bribery.
1
Thought-provoking reasoning from Linda Greenhouse in this essay. I agree with her ultimate conclusion that bringing the Supreme Court into the 2016 elections as an issue is critically important. And the opportunity for the "cattle call meetings with billionaire donors" advertisements would be wonderful.
2
It's sad but today our courts and judges are as partisan as our elected politicians. We can safely assume that in high profile cases about issues that divide the electorate justices will vote in the interests of the President who elected them. And. in the interests of that president's party.
This holds true for liberal and conservative justices. So, both sides will have litmus issues for candidates. Whether we elect a Republican or Democratic President we can expect every potential candidate to be carefully vetted to ensure he or she will rule in line with the President and his party's goals. No more David Souters are on the horizon.
This holds true for liberal and conservative justices. So, both sides will have litmus issues for candidates. Whether we elect a Republican or Democratic President we can expect every potential candidate to be carefully vetted to ensure he or she will rule in line with the President and his party's goals. No more David Souters are on the horizon.
3
The current Court is so far over in the reactionary weeds now that it needs to be rescued by Mrs. Clinton. Citizens United was a long reach to begin with because the matter decided was not a controversy before the court. So I would like to hear a prospective jurist depose on that subject. Notwithstanding, one thing is certain: one more nominee like Scalia, Thomas, Roberts or Alito and we'd enter the judicial dark ages for a generation.
15
No of course not, the only litmus test is that a judge will apply the constitution and stay out of making new laws. Too often the justices don't do this and that is one of the issues that our country has today.
1
This is the single most important issue facing the country in 2016.
Make no mistake: four more years (let alone eight) of Citizens United and our country is turned over completely to corporations, becomes an order of magnitude more unequal, and quickly collapses.
This is not doomsday. It's simple math. When 10% control 90% of anything, the system soon collapses.
Make no mistake: four more years (let alone eight) of Citizens United and our country is turned over completely to corporations, becomes an order of magnitude more unequal, and quickly collapses.
This is not doomsday. It's simple math. When 10% control 90% of anything, the system soon collapses.
1
Think of how refreshing it would be to see immediate disclosure of the donors--the real donors, not "stage names" to hide behind, and the amounts given. If this is really a free speech issue, perhaps we should be able to see who is speaking. And who is listening.
1
I think we have seen enough of Republican judicial activism with Citizens United. It may not be a litmus test for us (a single issue never is) but it would definitely carry some significant weight in the candidate's favor if they said they want to overturn Citizens (getting rid of all PACS and union donations would help as well). I don't expect to hear those words from any Republican candidate (and haven't) so they start out in reverse.
4
Is Ms. Greenhouse describing the "anything goes except quid pro quo" of Citizens United or the "anything goes as long as it wan't quid pro quo" of the Clinton Foundation?
Help me. I am confused.
Help me. I am confused.
7
Voters may oppose "unlimited campaign spending by corporations" in the abstract, but what they really mean is that they oppose such spending by the opposition. I also doubt this issue decides many votes.
And anyone who believes Citizens United has created the opportunity for more corruption must believe corruption was less of a problem before Citizens United. I'd like to see some evidence of that. There is plenty of evidence that such unlimited spending didn't guarantee electoral success.
Of course Hillary Clinton's reason to oppose Citizens United is clear. After all, the decision related to a movie critical of Clinton and she'd like to silence such opposition.
And anyone who believes Citizens United has created the opportunity for more corruption must believe corruption was less of a problem before Citizens United. I'd like to see some evidence of that. There is plenty of evidence that such unlimited spending didn't guarantee electoral success.
Of course Hillary Clinton's reason to oppose Citizens United is clear. After all, the decision related to a movie critical of Clinton and she'd like to silence such opposition.
10
"what they really mean is that they oppose such spending by the opposition." and that is where your assumption is dead wrong for a super majority of my neighbors in my red state that makes ohio look like Mass as well as my relatives that live in New England and on the west coast and in Texas None of us here or there want unlimited campaign spending by corporations, unions or PACS regardless of party. Perhaps people are different in Ohio.
6
Or what they really mean is that groups have no right to have free speech. If I have a right to do something then a group that I belong to also has that right. Simple!!!
Um, wrong. This Dem is fully against Citizens United spending by both parties and is just fine with it going away. I think your generalization is off-base. Polls show something like 75+% of Americans are against Citizens United.
1
Brava, madame Greenhouse! This piece cuts to the chase with wit and pizzazz.
Please play it again several times. As a Dem dependent on Social Security, trying to support a government I can stomach could easily bankrupt me, as there are a few senators, for example, that I will defend with my last $5's.
Please play it again several times. As a Dem dependent on Social Security, trying to support a government I can stomach could easily bankrupt me, as there are a few senators, for example, that I will defend with my last $5's.
7
Citizens United decision--just friends helping friends, not a bribe.
8
Says Justice Kennedy: “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.” He has to believe that, or he'd have to face the fact that the influence and access Republican activists and donors have to the right wing of the Supreme Court might cause the electorate to lose faith in IT.
7
Is it just me, or is this an unusually muted criticism of Citizens United by Ms. Greenhouse? I have some problems with the decision, but I support it on balance and certainly have never seen it as evil incarnate as so many on the left do. It is interesting and refreshing to read an icon of the left talking about Citizens United as being merely problematic or off-key, rather than the death knell of democracy. Admirable moderation.
4
So you support the fact that your vote is rendered significantly less meaningful by spending on both sides? And you're OK with candidates of both parties auditioning for the .01% before they run?
Every poll I've seen says that the overwhelming majority of Americans are against Citizens United. And that includes of lot of Republicans...
Every poll I've seen says that the overwhelming majority of Americans are against Citizens United. And that includes of lot of Republicans...
You had me at "icon of the left."
Since the law is gender racial ethnic sectarian socioeconomic political American history any and all of those factors should play a role in the SCOTUS nomination process. There is nothing just nor fair nor moral nor logical nor objective nor natural about the law. As the least democratic representative branch of our divided limited powered government the SCOTUS risks all legitimacy and respect with every politically predictable divided "opinion" by a court that is not representative of either the sectarian faith nor educational geographic diversity of origin of America.
3
There are four politicians, two judges, and three hybrids on the SCOTUS. With curious exceptions – e.g. the MD tax case – the four leftist politicians vote as “empathy” requires; the two judges vote as the law requires; and the three others wander around, often aimlessly.
GOP candidates are much less likely to appoint a politician to the SCOTUS. Read a BKGS opinion, and you get: “we rule thus because we like the results”. A Scalia or Thomas opinion reads:“this is what the law IS, because the people or Congress said so”. Read a Kennedy decision and you get “not really sure about the law, but I’m sympathetic to gays.”
Citizens United was an easy case: no part of “Congress shall make no law” is the least bit vague. The idea that Congress can ban books, movies, etc., is utterly foreign to American law (and should scare the Dickens out of an op-ed columnist for a CORPORATION). Yet that’s the power the government asserted it possesses.
If George Soros wants to spend $5 billion on an election, so what? If the American people stupidly endorse the policies he advocates, that’s their problem. To paraphrase Twain, democracy means the people deserve to get what they want, good and hard. Restricting speech makes the people no smarter.
Activism is simply defined: ignore the law in favor of results. If a nominee cannot name a case, the result of which he endorses, but which he would have opposed, on the grounds that the law was otherwise (or vice versa), he has no business serving.
GOP candidates are much less likely to appoint a politician to the SCOTUS. Read a BKGS opinion, and you get: “we rule thus because we like the results”. A Scalia or Thomas opinion reads:“this is what the law IS, because the people or Congress said so”. Read a Kennedy decision and you get “not really sure about the law, but I’m sympathetic to gays.”
Citizens United was an easy case: no part of “Congress shall make no law” is the least bit vague. The idea that Congress can ban books, movies, etc., is utterly foreign to American law (and should scare the Dickens out of an op-ed columnist for a CORPORATION). Yet that’s the power the government asserted it possesses.
If George Soros wants to spend $5 billion on an election, so what? If the American people stupidly endorse the policies he advocates, that’s their problem. To paraphrase Twain, democracy means the people deserve to get what they want, good and hard. Restricting speech makes the people no smarter.
Activism is simply defined: ignore the law in favor of results. If a nominee cannot name a case, the result of which he endorses, but which he would have opposed, on the grounds that the law was otherwise (or vice versa), he has no business serving.
4
Your two heroes on the Supreme Court both have peculiar views of the Constitution. Thomas, especially, applies a methodology to its interpretation which he invented himself and which rejects basic interpretive principles used since Marshall, the first Chief Justice. In cases involving political matters, such as Bush v Gore, voter ID laws, and political spending, Scalia's vote can be predicted based on whether the decision is viewed as helping Republicans.
As for your claim that a vote against the Citizen's United decision was judicial activism while a vote in favor of it was simple enforcement of the First Amendment, I guess you did not read it. The opinion rejected more than a century's worth of law about corporate regulation. Since at least as early as the royally chartered enterprises that colonialized America from England, corporations have existed only with the permission of the government, and their authority to conduct business was limited to those activities specified in their corporate charter, approved by the government. Before the 20th Century, in fact, in many U.S. states, an act of the Legislature was required before any corporation could exist. No innate right to incorporate has ever been recognized in this or any other country. Corporations are merely tools, and if they have Freedom of Speech, so do drill presses.
As for your claim that a vote against the Citizen's United decision was judicial activism while a vote in favor of it was simple enforcement of the First Amendment, I guess you did not read it. The opinion rejected more than a century's worth of law about corporate regulation. Since at least as early as the royally chartered enterprises that colonialized America from England, corporations have existed only with the permission of the government, and their authority to conduct business was limited to those activities specified in their corporate charter, approved by the government. Before the 20th Century, in fact, in many U.S. states, an act of the Legislature was required before any corporation could exist. No innate right to incorporate has ever been recognized in this or any other country. Corporations are merely tools, and if they have Freedom of Speech, so do drill presses.
1
How about a blanket advert 1 day before the election to the effect that "My opponent has withdrawn from the contest" blasted over all TV, radio and internet, and this funded with Soros money?
" If a nominee cannot name a case, the result of which he endorses, but which he would have opposed, on the grounds that the law was otherwise (or vice versa), he has no business serving."
We had no idea that you think Scalia "has no business serving." I don't think I've ever read a description of his judicial activism so accurately put.
We had no idea that you think Scalia "has no business serving." I don't think I've ever read a description of his judicial activism so accurately put.
Dear Justice Kennedy, A large portion of the electorate have already lost faith in this "democracy"--and you are largely to blame.
20
Ms. Greenhouse:
thank you:
excellent column, as per usual.
our society does need to be frequently reminded that POTUS'
longest-lasting act in office,
short of resigning,
is the nomination for life-long-membership in SCOTUS.
'tis disturbing, on the other hand, that a presidential candidate feels compelled
to offer a so-called "litmus" test for consideration in the coming 2016 election.
however, such considerations may be the only way to reset
the atrocious Citizens United decision...
quite likely the second worst decision,
behind Bush v. Gore,
since the bottom dweller some 120-odd-years ago:
Plessy v. Ferguson.
grrrrr
we need as much conversation and debate about these issues as is possible,
given that our legislatures are currently completely incapable of performing
their constitutionally mandated obligations.
a very long road to recovery indeed.
8
'Speech without money is speech that no one is going to hear.´ This would appear to be the attitude prevalent among the press that manifests itself in neglect of Bernie Sanders' campaign.
6
Britain manages very nicely without obscenely-extended billion-dollar electoral campaigns. They also have strict restrictions on media, and I think they also forbid lawn signs.
It's true that they are a parliamentary democracy (which maybe we should consider?) but the fact remains that their elections do not seem to be as overtly corrupted by money as ours do.
After a long life of voting in many elections, I have been forced to conclude that lately we have the best government money can buy.
It's true that they are a parliamentary democracy (which maybe we should consider?) but the fact remains that their elections do not seem to be as overtly corrupted by money as ours do.
After a long life of voting in many elections, I have been forced to conclude that lately we have the best government money can buy.
Foreign millionaires and industry have bought political favors from the Clintons in exchange for cash.
Why does Clinton want to deny that right to American millionaires and industry?
The selling of political favors by any politician is corrupt and unethical.
The Clintons are the epitome of hypocrisy and self interest.
Why does Clinton want to deny that right to American millionaires and industry?
The selling of political favors by any politician is corrupt and unethical.
The Clintons are the epitome of hypocrisy and self interest.
4
We have two very old justices. A chief who has had an aneurysm and the rest don't look like they even walk around the block on a regular basis. That isn't a put down at all. I've been in better shape myself. But, if the media does not make a huge deal about the importance of who will be electing the justices over the next years, they should pack it up.
Yes, the ground work for Obama's original campaign was brilliant and the GOP never saw it coming. BUT they stopped with a strategy, resting on their laurels.
Then, GOP mobilized and strategied and now we have ALEC writing laws all over the country, then we have the wimpy response to absurd laws and then we have the overturning of such and bang, here's three people who are willing to challenge it to the SCOTUS. Normally, they would never hear such cases but four are willing to tow the water and thanks to that, law of the land.
So Citizens United actually allowed a very partisan group ALEC to write laws, have them challenged and then enacted. Is that not a few activists?
It's a huge deal and she's right to bring it up. Citizens united isn't going anywhere but these justices are and it matters dearly who fills their places.
Yes, the ground work for Obama's original campaign was brilliant and the GOP never saw it coming. BUT they stopped with a strategy, resting on their laurels.
Then, GOP mobilized and strategied and now we have ALEC writing laws all over the country, then we have the wimpy response to absurd laws and then we have the overturning of such and bang, here's three people who are willing to challenge it to the SCOTUS. Normally, they would never hear such cases but four are willing to tow the water and thanks to that, law of the land.
So Citizens United actually allowed a very partisan group ALEC to write laws, have them challenged and then enacted. Is that not a few activists?
It's a huge deal and she's right to bring it up. Citizens united isn't going anywhere but these justices are and it matters dearly who fills their places.
4
I'm sure all presidents ask their prospective Court nominees the nominees' positions on many issues.
Supreme Court justices do NOT apply the law. They decide what result they want and then dredge up some rationale to support that result.
Consider Supreme Court Justice Hugo Black. He voted to support the WWII Japanese internment saying "we were at war". Not a constitutional argument but one based on expediency.
In Cohen, Black in the minority of a 5-4 Court decision voted to uphold the conviction of a young man who during the Vietnam War appeared in public with a shirt saying "[naughty word] the draft".
Black wrote that the naughty word was sufficiently obscene to merit a conviction on obscenity charges. Expediency overruled for Black the "no law" prohibition in the 1st Amendment.
The present Court's Citizens United ruling has nothing to do with free speech or the 1st amendment. The 5 conservative judges have a conservative economic agenda and they want to allow rich conservatives to spend as much as they want to elect conservative public officials who will support and enact that conservative agenda.
I see nothing wrong in a president asking a prospect Court nominee for
his /her position on issues.
Supreme Court justices do NOT apply the law. They decide what result they want and then dredge up some rationale to support that result.
Consider Supreme Court Justice Hugo Black. He voted to support the WWII Japanese internment saying "we were at war". Not a constitutional argument but one based on expediency.
In Cohen, Black in the minority of a 5-4 Court decision voted to uphold the conviction of a young man who during the Vietnam War appeared in public with a shirt saying "[naughty word] the draft".
Black wrote that the naughty word was sufficiently obscene to merit a conviction on obscenity charges. Expediency overruled for Black the "no law" prohibition in the 1st Amendment.
The present Court's Citizens United ruling has nothing to do with free speech or the 1st amendment. The 5 conservative judges have a conservative economic agenda and they want to allow rich conservatives to spend as much as they want to elect conservative public officials who will support and enact that conservative agenda.
I see nothing wrong in a president asking a prospect Court nominee for
his /her position on issues.
6
GOP has been politicizing the judiciary since Nixon, and quite successfully for their purposes. Just look at recent appellate/SCOTUS decisions on voter ID, immigration, practically everything but same-sex marriage.
We are finally at a point, after Citizens United, that the broader public may be receptive to the idea that it matters who gets to pick the judges.
At the end of the day the best (not only) reason to vote for Hillary is she has the best chance at changing the Supreme Court so that in the future we won't be limited to wealthy, corporatist candidates like her.
We are finally at a point, after Citizens United, that the broader public may be receptive to the idea that it matters who gets to pick the judges.
At the end of the day the best (not only) reason to vote for Hillary is she has the best chance at changing the Supreme Court so that in the future we won't be limited to wealthy, corporatist candidates like her.
21
Precisely. A great many politicians voice their support to their nominee, because the appointment of judges to tilt outcomes, is a very important result of elections for President. It shown very plainly in the subcommittee that vets judges to be appointed. Many are turned down or just not approved because of their judicial history - how they interpreted the laws of the US. The process is completely politicized and hits a nadir when it comes to appointments to the Supreme Court.
I've always felt the argument "money isn't speech" is accurate but incomplete. Completed, it should read "money isn't speech, it's volume of speech." And volume can be regulated, as the Noise Pollution and Abatement Act of 1972 shows.
11
You write as if there were judges with independent mindsets instead of the reality of two homogeneous tribes.
4
The real dog-whistle term is "judicial activism".
It's come to mean any process by which a judge arrives at a decision you disagree with. We now excuse it or discount it because we hear it so often -- as with any politically-motivated critique, we know it's not always true, but we shouldn't presume it's always false, either.
I think our national discussion would become far more honest if we first agreed not to use the term at all. Any nominee to the Supreme Court who claims only to be "calling balls and strikes" is being disingenuous: cases that only require an umpire are the ones that aren't even supposed to get to the Supreme Court in the first place. Justices need to interpret old laws with new situations.
It's come to mean any process by which a judge arrives at a decision you disagree with. We now excuse it or discount it because we hear it so often -- as with any politically-motivated critique, we know it's not always true, but we shouldn't presume it's always false, either.
I think our national discussion would become far more honest if we first agreed not to use the term at all. Any nominee to the Supreme Court who claims only to be "calling balls and strikes" is being disingenuous: cases that only require an umpire are the ones that aren't even supposed to get to the Supreme Court in the first place. Justices need to interpret old laws with new situations.
8
Gee what a radical idea - someone buying an election - gee that hasn't happened since oh maybe 1799
2
Such optimism. I guess if things are messed up, there's no reason to try to fix them.
Note to our grandchildren: sorry if "twas ever thus" means you have no habitat to live in. I'd say we tried, but the fact is we didn't.
Note to our grandchildren: sorry if "twas ever thus" means you have no habitat to live in. I'd say we tried, but the fact is we didn't.
You're right, so let's do nothing about it.
I wonder whether Justice Kennedy belives hi own words in Citizens United. Does he not realize that millions of Americans have become dissilusioned by the flood of PAC money? Does he not realize that his position that the "appearance" of corruption is not relevant is way off the mark? Or is he really as big a political hack as the Citizens United opinion makes him appear to be?
22
Very often potential nominees to the Supreme Court are asked their opinions on matters that may come before the Court, and their stated position may affect the vote on the nomination. In one of the most notorious examples, in 1870, in Hepburn v. Griswold, 8 Wall 630 (1870), the Supreme Court found the Legal Tender Act unconstitutional in a 4 to 3 vote (there were two vacancies on the Court). That law, passed in 1862, allowed the government to print paper money to finance the war and declared that such paper notes were lawful currency. The Republican Party strongly supported the law while the Democrats attacked it. Since there were two vacancies on the Court. President Grant and the Republican Senators were determined to appoint two Justices that would overturn the decision. One nominee, William Strong, had supported the law when he was a lower court judge so he was a safe candidate. The other nominee, Joseph Bradley, had written a letter to a supporter indicating his position in favor of the law. That letter was shown to various Senators who wanted to know his position. They then voted to confirm his nomination. Sure enough, one year later, the Supreme Court reversed its earlier decision and upheld the law, with Strong and Brsrdley voting to reverse. Legal Tender Cases, 12 Wall. 457 (1871). See my essay on Bradley in "The Justices of the United States Supreme Court: Their Lives and Major Decisions, Len Friedman and Fred Bradley, eds. (Facts on File, 2913)
4
The litmus test I think should be applied is whether or not they will follow the INTENT the constitution was understood to have by those is made it law by ratifying it. This applies to the original document and its amendments.
I believe changing the meaning of the constitution can constitutionally only be done through amendments. Rewriting it is legislating, and Legislation is solely the role of congress.
Article I, Section I: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
I expect many who do not like the intended meaning of the constitution will argue otherwise. Some may say it is a guide only although it says that nowhere in the document or Federalist Papers. Others will say it is a living document outside of the Amendment process, although that is not stated in the document or Federalist papers to my knowledge
As for me, I take it as the basis of our rule of law. A document that is changed only through amendment, and not willful reinterpretation.
John
I believe changing the meaning of the constitution can constitutionally only be done through amendments. Rewriting it is legislating, and Legislation is solely the role of congress.
Article I, Section I: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
I expect many who do not like the intended meaning of the constitution will argue otherwise. Some may say it is a guide only although it says that nowhere in the document or Federalist Papers. Others will say it is a living document outside of the Amendment process, although that is not stated in the document or Federalist papers to my knowledge
As for me, I take it as the basis of our rule of law. A document that is changed only through amendment, and not willful reinterpretation.
John
7
"will follow the INTENT the constitution was understood to have by those is made it law by ratifying it."
How do you propose to know that intent? The syllogism "(1) There was campaign in support of ratification (consisting in large and famous part of the publication of the Federalist Papers), (2) ratification occurred, therefore (3) the intent of the ratifiers was in alignment with the claims, principles, and ideologies put forth in the pro-ratification campaign" is faulty to the point of uselessness.
How do you propose to know that intent? The syllogism "(1) There was campaign in support of ratification (consisting in large and famous part of the publication of the Federalist Papers), (2) ratification occurred, therefore (3) the intent of the ratifiers was in alignment with the claims, principles, and ideologies put forth in the pro-ratification campaign" is faulty to the point of uselessness.
Well said. If we decide the Constitution is a living document, to be interpreted differently during different times, we may as well not have a constitution.
Let us not forget that it took constitutional amendments to eliminate slavery and to give women the vote. If the Constitution is out of step with the times - Amend it!
Let us not forget that it took constitutional amendments to eliminate slavery and to give women the vote. If the Constitution is out of step with the times - Amend it!
2
William Star wrote "How do you propose to know that intent?"
The Federalist Papers stated the meaning while the constitution was being proposed and are an excellent reference in addition to that is what remains in terms of records of the debates, and how we generally governed for the first hundred years. Chances are sudden changes in interpretation that occurred during the progressive era were not intended by those who wrote and ratified the constitution. For example, for most of the time before 1936, "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;" was interpreted not to be a stand alone power, but limited to financing the enumerated powers that IMMEDIATELY FOLLOWED. This made sense because why would you have separate powers to "To raise and support Armies, " and "To establish Post Offices and post Roads;" if providing for the common defense and general welfare were intended to be general powers.
However, in 1930's during the depression the SCOTUS, adopted the interpretation that there was a stand alone power for general welfare spending. I believe at least one case based this on the writings of Justice Story writings that occurred decades after ratification. To me, the writings of Madison (AKA father of the constitution) while the constitution was being ratified along with the interpretation it had for many years should carry more weight
The Federalist Papers stated the meaning while the constitution was being proposed and are an excellent reference in addition to that is what remains in terms of records of the debates, and how we generally governed for the first hundred years. Chances are sudden changes in interpretation that occurred during the progressive era were not intended by those who wrote and ratified the constitution. For example, for most of the time before 1936, "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States;" was interpreted not to be a stand alone power, but limited to financing the enumerated powers that IMMEDIATELY FOLLOWED. This made sense because why would you have separate powers to "To raise and support Armies, " and "To establish Post Offices and post Roads;" if providing for the common defense and general welfare were intended to be general powers.
However, in 1930's during the depression the SCOTUS, adopted the interpretation that there was a stand alone power for general welfare spending. I believe at least one case based this on the writings of Justice Story writings that occurred decades after ratification. To me, the writings of Madison (AKA father of the constitution) while the constitution was being ratified along with the interpretation it had for many years should carry more weight
For some reason I don't look at Hillary Clinton's stance on Citizens United as a litmus test. Rather, a leader taking a stance against a politically motivated court. It's logical to make her statements. It's good for the country to over turn such an absurd decision. Before I elect a president, I want to know exactly what they want in a Supreme Court judge.
13
“The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”
It will and it has.
It will and it has.
39
In looking over the accomplishments of the present SCOTUS, I would strongly suggest an I.Q. test and a reading competency test for nominees.
6
Yes. You do have to wonder about the conservative's reliance on Fox for info.
3
What about fidelity to the constitution? Without that a high I. Q. may be a tool for cleverly twisting the meaning of the constitution rather than applying justly as originally intended.
A knife in the hand of a surgeon is a tool of good. A knife in the hands of a criminal violent criminal may be a tool of great evil. The same analogy can be applied to IQ.
John
A knife in the hand of a surgeon is a tool of good. A knife in the hands of a criminal violent criminal may be a tool of great evil. The same analogy can be applied to IQ.
John
You need multiple news sources. For example, I think the Times, which I subscribe to and value took a few days before getting into the real meat of the Jonathan Gruber story which was based on Video evidence. A news source sharing your own ideology can tend to be an echo chamber particularly in the comments section.
I do listen to Fox, but I also read the times and will listen to CNN and even MS-NBC.
I do listen to Fox, but I also read the times and will listen to CNN and even MS-NBC.
I love the way Linda Greenhouse makes us think. There are, perhaps, other ways to make it clear how disgusting and dangerous the decision to put money before anything is. It's interesting to find oneself agreeing with opposing views, but in this case the original decision is so nauseating it's hard not to approve anyone and anything that will bring it to an end.
The blame is first and foremost on the current court which appears to have no shame in favoring the wealthy over the rest of us, and no difficulty ignoring civilization-ending problems or history, which shows that hubris and greed always brings chaos in the end.
The blame is first and foremost on the current court which appears to have no shame in favoring the wealthy over the rest of us, and no difficulty ignoring civilization-ending problems or history, which shows that hubris and greed always brings chaos in the end.
37
When Roberts was going through his vetting process for his SCOTUS appointment, he was asked point blank if he would be an activist judge. He made it very clear in very plain language that he would not be an so called activist judge and that he would let past decisions be settled law.
He blatantly lied and he has done quite the opposite- look at the gutting of the Voting Rights law as just one example. Roberts has presided over the worst SCOTUS in US history and many of these decisions have undermined our lives. Citizens United is just one horrible example, but it is by no means, the only example.
So much for litmus tests... they don't mean much when you're asking a liar about it. They'll say anything to get approved and then do whatever they want- after all, they have a lifetime appointment and they answer to no one.
He blatantly lied and he has done quite the opposite- look at the gutting of the Voting Rights law as just one example. Roberts has presided over the worst SCOTUS in US history and many of these decisions have undermined our lives. Citizens United is just one horrible example, but it is by no means, the only example.
So much for litmus tests... they don't mean much when you're asking a liar about it. They'll say anything to get approved and then do whatever they want- after all, they have a lifetime appointment and they answer to no one.
42
Has no one learned by now about the conservative wing of the Supreme Court? It is not an activist court if conservatives agree with the ruling but it is an activist court if the conservatives don't agree with the decision.
Illuminating, as always ; and entertaining to boot. The premise that we all are potentially corruptible, depending on the circumstances 'of course', has been lost in the current activist and politized Supreme Court. That money is necessary for speech to be propagated, and a candidate to become known is true...to a point, but loads of it by the rich and powerful smacks of hypocrisy and an inversion of what a democracy should look like. No wonder the electorate is frustrated and thiking its intervention worthless. For some of us, the reality of it comes closer to a Corpocracy, and where special interests and its tax loopholes predominate. And Congress seems to be doing its bidding, a most unfortunate fact. A paradigm is needed.
8
It's unlikely that most of us could get through a single day without one or two JUICY litmus tests.
If the only benchmarks used in assessing potential U.S. Supreme Court justices were "intellectual brilliance and fidelity to 'the law'”, we could very possibly have nine Antonin Scalias. How would THAT play on the Upper West Side? The left constantly lambastes conservative justices precisely FOR their insistence that the Court mind its knitting, stick to its job as umpire and that Congress do ITS job for a change, rather than imposing ideologically interested solutions on knotty social disagreements. Fairly, the right is constantly lambasting Ruth Bader Ginsburg for being so predictably strident in her attempts to impose ideologically interested solutions on knotty social disagreements.
We're stuck with an imperfect system, and that includes litmus tests: WHICH set of such tests is dominant at any given time is one of the rewards of winning the presidency and enough senate seats to get away with the tests.
But I think a Republican Senate wouldn't hesitate to go to the mat to prevent confirmation of a Clinton nominee dedicated to reversing Citizens United. All those polls in favor of this course depend entertainingly on how the question is asked; and the notion of being told how to live by nine old men who serve for life during good behavior has NEVER been universally welcomed. (Oh, all RIGHT. Six old men and three thoroughly charming women of indeterminate age.)
If the only benchmarks used in assessing potential U.S. Supreme Court justices were "intellectual brilliance and fidelity to 'the law'”, we could very possibly have nine Antonin Scalias. How would THAT play on the Upper West Side? The left constantly lambastes conservative justices precisely FOR their insistence that the Court mind its knitting, stick to its job as umpire and that Congress do ITS job for a change, rather than imposing ideologically interested solutions on knotty social disagreements. Fairly, the right is constantly lambasting Ruth Bader Ginsburg for being so predictably strident in her attempts to impose ideologically interested solutions on knotty social disagreements.
We're stuck with an imperfect system, and that includes litmus tests: WHICH set of such tests is dominant at any given time is one of the rewards of winning the presidency and enough senate seats to get away with the tests.
But I think a Republican Senate wouldn't hesitate to go to the mat to prevent confirmation of a Clinton nominee dedicated to reversing Citizens United. All those polls in favor of this course depend entertainingly on how the question is asked; and the notion of being told how to live by nine old men who serve for life during good behavior has NEVER been universally welcomed. (Oh, all RIGHT. Six old men and three thoroughly charming women of indeterminate age.)
1
Scalia's " brilliance and fidelity to the law", if that is what you want to call it, is only exceeded by Clarence Thomas'.
3
"The left constantly lambastes conservative justices precisely FOR their insistence that the Court mind its knitting, stick to its job as umpire and that Congress do ITS job for a change, rather than imposing ideologically interested solutions on knotty social disagreements."
Oh, is *that* what we leftists lambaste the Republican Five for? Thank you *ever* so much for telling us.
Oh, is *that* what we leftists lambaste the Republican Five for? Thank you *ever* so much for telling us.
"During the presidential debates in 2012, neither candidate was asked a single question about the Supreme Court." I think, Ms. Greenhouse, that this is the major issue here, rather than judicial activism. And perhaps I stray from your excellent points, but, in a "free democratic society," in which the press is supposed to play a vital role, why was this question not asked? Given the rift that Citizens United created in the body politic, no reporter (two full years after the 2010 decision!) was experienced, interested, or professional enough to ask the president and Gov. Romney about the role of money in an election cycle and how the wealthy own a greater stake in policy outcomes than the average mere citizen?. Willful stupidity is the signature of this appalling ruling; may Justice Kennedy be eternally and justly pilloried for it. His apparent willingness to look the other way while moneyed interests picked and poked and prodded at the wording in the decision until they found the waiting open doors through which they could justify legalizing bribery was merely the first domino to fall. And the dominoes continue to fall. Will we hear this issue during the Republican debates, their Fox-appointed show-time already swollen by ridiculous numbers? And it is rich that the Madame Secretary promises to disenfranchise the "right of billionaires to buy elections." A disapproving citizenry is stuck with little recourse since casting a vote seems an awful waste of time, even for them.
8
So, Hillary Clinton wants to pack the Supreme Court, as FDR tried unsuccessfully? It may serve her presidential aspirations better if she showed a development of a stronger backbone as befitting an aspirant to the post of the Commander in Chief of the US military forces. Her reactions to her spouse's sexual shenanigans in the White House show anything but this needed quality.
1
"Pack the Supreme Court" a la FDR? Don't know much about history...
5
From NPR: "FDR's losing battle to pack the Supreme Court"
http://www.npr.org/templates/story/story.php?storyId=125789097
http://www.npr.org/templates/story/story.php?storyId=125789097
What!? *Every* president wants to pack the Supreme Court! Wouldn't you??
Given that Republicans get roughly twice as much money overall in corporate expenditures as do Democrats, they will fight tooth and nail to keep any nominee who thinks Citizens United was wrongly decided off the Supreme Court. The only question is whether they'll admit that it has nothing to do with "free speech."
10
The problem with overturning Citizen's United among many is that the Supreme Court has set it up so that you must have mega bucks from corporate and rich sponsors to get elected so that you have a chance to undo Citizen's United. So Republicans scoff as anyone trying to do so is enveloped in the corrupt system which becomes almost impossible to change. Thanks to the Supremes. What a wonderful catch 22 world we live in.
21
It also doesn't help that the media--which benefits the most from campaign spending outside of the actual donors--has a vested interest in the status quo re: Citizens United.
1
"The only rationale the First Amendment permits for limiting political spending, the court said, is the prevention of corruption or the appearance of corruption. Fair enough . . ."
No, not fair--a stunted and fundamentally conservative view. The Supreme Court says that increasing equality in speech is a constitutionally impermissible motive. And they got that from where?
No, not fair--a stunted and fundamentally conservative view. The Supreme Court says that increasing equality in speech is a constitutionally impermissible motive. And they got that from where?
6
George:
"And they got that from where?"
They got that from the Constitution. You should try reading it. It says that Congress shall not abridge freedom of speech.
Notice that that does not bar Congress from "increasing equality in speech" say, by providing public forums for speech or public financing for election campaigns.
"And they got that from where?"
They got that from the Constitution. You should try reading it. It says that Congress shall not abridge freedom of speech.
Notice that that does not bar Congress from "increasing equality in speech" say, by providing public forums for speech or public financing for election campaigns.
3
Republicans have had llitmus tests for a long time. All their apointees have to oppose Roe vs. Wade and support anythng that's pro corportion. It's always amusing at how upset they get when someone else plays their game.
15
Bill, you are correct, but don't forget: there's a difference between Republican dedication to overturning Roe, and Republican dedication to business interests. The former is simply a wedge issue, dragged out every four years to get the base to turn out in a general election; it's a smokescreen. The latter is the real agenda. John Roberts never mentioned in his confirmation hearing, his antipathy to campaign finance regulations, any more than Scott Walker ever campaigned on his antipathy to unions during his election.
26
Change "Republicans" to "Democrats" and change "oppose" to "agree with".
Both sides play the same game.
Both sides play the same game.
2
The genie is out of the bottle, and its not going back in. Everything is polarized politically in this country, now, and it's not going to change. Hillary was just reflecting this reality in her usual tough-minded way. If that's the way the game is played, then, by God I'll play it, and play it to win!
I applaud her for that.
I know this is the "rage page." Everyone uses the Comments to vent their outrage about something. So, I expect some snarky comments about this comment. Don't waste your breathe.
I applaud her for that.
I know this is the "rage page." Everyone uses the Comments to vent their outrage about something. So, I expect some snarky comments about this comment. Don't waste your breathe.
24
Actually, everything you've said is indisputable.
The history of the Supreme Court is rooted in political influence tempered or exacerbated by the all too human individuals wearing the black robes.
Presidential nominees of both parties have used SCOTUS to further their political ideological agendas. Given the tenure of justices, their political influence tends to hang over the country for a very long time, unless the individuals moderate their philosophies during their time on the bench.
Ironically, it was a republican, Dwight Eisenhower, who appointed the first or second most important Chief Justice in the history of the court, Earl Warren. In addition, Ike appointed two or three others who became the core of the court most focused on protecting the rights of individuals against mob rule or government intrusion. The repeal of Plessey v Ferguson as realized through Brown v Board of Education (Topeka) marked the most significant social change in America since the Emancipation Proclamation. How ironic that a conservative president (who today would not be considered sufficiently conservative by his own party) named the most liberal court.
Political swings occur with regularity in America and we now have a conservative court more in tune with strict constructionism on issues which conform to their political & ideological leanings. Unless we demand an amendment to the Constitution, we are stuck with them until some future president appoints justices whose political and judicial judgement evolve with the times.
Presidential nominees of both parties have used SCOTUS to further their political ideological agendas. Given the tenure of justices, their political influence tends to hang over the country for a very long time, unless the individuals moderate their philosophies during their time on the bench.
Ironically, it was a republican, Dwight Eisenhower, who appointed the first or second most important Chief Justice in the history of the court, Earl Warren. In addition, Ike appointed two or three others who became the core of the court most focused on protecting the rights of individuals against mob rule or government intrusion. The repeal of Plessey v Ferguson as realized through Brown v Board of Education (Topeka) marked the most significant social change in America since the Emancipation Proclamation. How ironic that a conservative president (who today would not be considered sufficiently conservative by his own party) named the most liberal court.
Political swings occur with regularity in America and we now have a conservative court more in tune with strict constructionism on issues which conform to their political & ideological leanings. Unless we demand an amendment to the Constitution, we are stuck with them until some future president appoints justices whose political and judicial judgement evolve with the times.
25
I think that if Eisenhower were alive today, he would definitely not be a Republican- probably a centrist Democrat or Independent. Consider his leadership to build major infrastructure including the Interstate Highway system, the progressive tax rate that was in place, and also, his warnings about the military industrial complex and I think it is clear he would have no place in today's GOP clown car.
3
Free speech is suddenly very expensive. Only the very wealthy (corporate and privileged) have any influence on our legislatures. And that influence if specific and tangible.
5
This is a bit off topic, but the subject of judicial activism does come up. I would like to ask Ms. Greenhouse, who is the best op-ed writer I've ever read on any topic, to write a piece about the concept of constitutional originalism. When I was a student, everything I read suggested that the U.S. system (based on the English one) is a system of precedents. Max Weber wrote that this gave the law at least some predictability, which he viewed as an asset to businessmen and to capitalism as a system (albeit one he did not admire). He contrasts this system to the Napoleonic Code, in which, at least as I understand it, every judge is meant to go back to first principles, a form of "originalism" if you like, and one that makes judicial decisions unpredictable. Citizens United overturned a hundred year old precedent supposedly by appealing to first principles. Is the conservative argument now that we ought to be adopting a French system? It seems that while conservatives claim to want a consistent and unchanging system, originalism will actually open us up to radical change every time the court shifts, as different judges interpret the Constitution differently, rather than looking at precedents. If you read these, Ms Greenhouse, please comment.
Yours, a fan. ( A phrase I have never previously used!)
Yours, a fan. ( A phrase I have never previously used!)
14
The problem is in the education level of the educated: too much science and not enough philosophy: we have become a nation of micro-minds.
A lot of people limit their decision making to a Needs/Solution mantra without considering balancing Needs against Impact, particularly when it comes to societietal issues beyond the micro-chip.
In the old days, we use to call it closed-mindedness. Today, I would just call it tunnel vision. Our educated people are technocrats, that's all. I hardly think that is any different than robotic mentality stemming from an education system that limited to expotential worship.
A lot of people limit their decision making to a Needs/Solution mantra without considering balancing Needs against Impact, particularly when it comes to societietal issues beyond the micro-chip.
In the old days, we use to call it closed-mindedness. Today, I would just call it tunnel vision. Our educated people are technocrats, that's all. I hardly think that is any different than robotic mentality stemming from an education system that limited to expotential worship.
1
The Citizens United decision is an abomination. Corporations are not people and money is not speech. I don't mind the litmus test but the bottom line is the Republicans will defend Citizens United to the last man until they start getting beat at their own game. So yes Hilary needs to not unilaterally disarm and Democrats need to put their money where their mouths are.
14
“They will only prompt another litmus test on an issue like Roe v. Wade.” which has been with us for decades. BTW, Roberts was less than honest during his confirmation hearings, so what's the issue?
5
I understand the concept that corporations are entitled to have opinions. But to grant them full personhood, as the Court appears to have done, seems to be a stretch. The litmus test for corporations should be to determine how they vote. It is obvious that corporations cannot go to the poll and cast a ballot. Those of us who can do that should make it clear that corporations may have speech rights, but they are lesser citizens than we. It seems that corporations are second class citizens by definition. If we don't create that definition now, what will happen when robots and computers combine the ability to think with the ability to actually enter a voting booth and pull the lever?
6
Why can't HRC simply avoid the litmus test distraction by forcefully and regularly expressing her opposition to Citizens United (and the abysmal Hobby Lobby decision, for that matter)? It is the news media, mostly, that has pressed the litmus test standard, because it serves as a sort of issue shorthand for editors, and red meat to opponents of nominees.
In other words, lets rid ourselves of the litmus test for the litmus test and insist, instead, that candidates address the issue of excessive campaign spending and the growing influence of money in politics.
In other words, lets rid ourselves of the litmus test for the litmus test and insist, instead, that candidates address the issue of excessive campaign spending and the growing influence of money in politics.
8
Bernie Sanders first took the position that he would not nominate any justices to the Supreme Court that would not pledge to overturn Citizens United. Hillary Clinton only parroted Sen. Sanders' position. It is unfortunate that Bernie's positions are ignored by too many in the media and every word that Secretary Clinton mutters is reported/op-ed on.
41
The damage done to our democracy by the court's rulings regarding money and politics is already evident after a few short years. This particular litmus test should be out in the open. We need presidential candidates who make fixing this a priority, both before and after the election. Bring it on.
32
What damage has it caused? The real damage is the fact that 47% of the public pays $0 in income tax, but can vote to take my hard earned money from me, and give it to themselves. Taxpayers need a way to level the playing field against the moochers and the looters.
Another column, more self-parody from Greenhouse. Truly, she has learned nothing and forgotten nothing since the seventies.
Under Ms. Justice Greenhouse's Constitution, the First Amendment protects nude dancing but not political speech! The framers must be turning in their graves at this silliness. But then they had never lived to see post-modernism or jurisprudential Dadaism.
That is not all. There is also Greenhouse's narcissistic habit of equating her own astigmatic views to the "truth" or "the real world." In Greenhouse's "real world," it is a given that corporations are corrupt. If Justice Kennedy doesn't share the left's fixation with corporations, then the poor guy is just deluding himself.
What is it about corporations that makes liberals stupid? The law struck down in Citizens United restricted "electioneering" speech by corporations. But why corporations? How is it "corrupt" when a corporation spends $10 million on ads in the New York Times supporting political candidates but not corrupt when Sheldon Adelson does it?
The First Amendment declares that Congress shall make no law abridging freedom of speech. At the heart of free speech is political speech. That is a pretty high bar for Congress to meet if it wishes to abridge political speech by corporations even without specific evidence of corruption. That sounds like prior restraint to me.
PS. Why should the New York Times Corporation be exempt from restrictions that apply to other corporations?
Under Ms. Justice Greenhouse's Constitution, the First Amendment protects nude dancing but not political speech! The framers must be turning in their graves at this silliness. But then they had never lived to see post-modernism or jurisprudential Dadaism.
That is not all. There is also Greenhouse's narcissistic habit of equating her own astigmatic views to the "truth" or "the real world." In Greenhouse's "real world," it is a given that corporations are corrupt. If Justice Kennedy doesn't share the left's fixation with corporations, then the poor guy is just deluding himself.
What is it about corporations that makes liberals stupid? The law struck down in Citizens United restricted "electioneering" speech by corporations. But why corporations? How is it "corrupt" when a corporation spends $10 million on ads in the New York Times supporting political candidates but not corrupt when Sheldon Adelson does it?
The First Amendment declares that Congress shall make no law abridging freedom of speech. At the heart of free speech is political speech. That is a pretty high bar for Congress to meet if it wishes to abridge political speech by corporations even without specific evidence of corruption. That sounds like prior restraint to me.
PS. Why should the New York Times Corporation be exempt from restrictions that apply to other corporations?
4
Your comments here don't make much sense to me. Where do you get the notion that Ms. Greenhouse thinks that the First Amendment protects nude dancing but not political speech? And, in the world I live in, when someone donates millions of dollars to get an official elected and then the official proceeds to support those interests at the expense of the public good, it looks a lot like corruption to me. Does it not looks that way to you?
She doesn't single out corporations because corporations are intrinsically bad, she singles out big money (from Comcast or Sheldon Adelson) when that begins to dominate the political agenda.
Freedom of speech does not mean the freedom to buy up all the megaphones so that ordinary people's voices are drowned out in the public arena.
She doesn't single out corporations because corporations are intrinsically bad, she singles out big money (from Comcast or Sheldon Adelson) when that begins to dominate the political agenda.
Freedom of speech does not mean the freedom to buy up all the megaphones so that ordinary people's voices are drowned out in the public arena.
8
Ian, Your political affiliation is obvious as is the source of your seriously biased opinions & views. A well tempered, intellectually curious & open mind isn't apparent in the conclusions you proffer.
If there was ever a moment in modern times when litmus tests weren't applied to nominees to federal courts, I can't recall it. That being the case, we should distinguish bet. such tests. Why should Democrats support a Supreme Court nominee who had passed the far right's litmus test of reversing Roe v. Wade? Certainly Tea Party Republicans wouldn't support a nominee whom Democrats put forward in order to reverse Citizens United. Apparently Greenhouse believes we can pretend that litmus tests don't exist, or that it is impolite to mention that they do. Part of the pretense is that the justices of the Supreme Court only decide the law, when in fact they make and always have made law. They are basically politicians who are appointed for life and never have to account for their actions. Their license to be self-indulgent and the absence of any means to hold them accountable have led us into the morass we call our judicial system. All that being true (pace, Ms, Greenhouse), I welcome a candidate who says forthrightly that she will appoint justices to the Supreme Court who will reverse Citizens United (and uphold Roe v. Wade). I could pretend that presidents only appoint qualified persons to the Court and never, never think about how they will rule, but that's a pretense too far now, and forever.
6
The Citizens United decision has been a savage blow to the Supreme Court because it is not the first blow. It follows the appointment of George Bush as President. It follows the gutting of criminal law protections. It follows gutting of voting rights laws. It follows re-definition of civil rights and employment rights against their original purpose.
Citizens United is a further heavy blow on an already badly damaged institution. While the decision is wrong and damaging, the real problem is the Court itself and the damage to it as an institution in our system.
We are far past litmus test, so that in confirmation now nobody believes any of the lies told. Roberts rubbed our noses it this himself, with his outrageous assurances, all of which he went back on instantly and so completely he could only have been cynically lying when he was confirmed.
The Supreme Court created its own place in our system, by creating judicial review. That isn't in the Constitution. It is accepted out of centuries of respect. Now that respect has been tossed to the winds.
Much worse is coming. Congress and/or the President might soon begin to ignore the Court. That happens in most other countries, to varying degrees. We have always been an exception.
That exception is born of good behavior based on good faith. Those are now gone on all sides, and conspicuously gone from the Court itself.
Citizens United is a further heavy blow on an already badly damaged institution. While the decision is wrong and damaging, the real problem is the Court itself and the damage to it as an institution in our system.
We are far past litmus test, so that in confirmation now nobody believes any of the lies told. Roberts rubbed our noses it this himself, with his outrageous assurances, all of which he went back on instantly and so completely he could only have been cynically lying when he was confirmed.
The Supreme Court created its own place in our system, by creating judicial review. That isn't in the Constitution. It is accepted out of centuries of respect. Now that respect has been tossed to the winds.
Much worse is coming. Congress and/or the President might soon begin to ignore the Court. That happens in most other countries, to varying degrees. We have always been an exception.
That exception is born of good behavior based on good faith. Those are now gone on all sides, and conspicuously gone from the Court itself.
97
Most of us want Citizens United overturned, but it's foolish to believe that anything will change if it is. Corporations had learned how to control the government prior to that decision. Until elections are publicly financed, we will continue to see corporate marionettes in charge of not just our government, but media and education, too.
There is a political description for corporate control of all private and public activity. It's called fascism.
There is a political description for corporate control of all private and public activity. It's called fascism.
50
"Oligarchy" or "plutocracy" would be closer to the correct term, though to my knowledge no exact word for rule by the trans-national corporations exists. Fascism developed out of a sense of crisis after WWI, an ultra-nationalism as a reaction to defeat (Germany) or political chaos in the face of the threat of communist revolution (Italy). It was violent, authoritarian, xenophobic, and anti-democratic. There are hints of all of these in the present US, but rule by the corporations is not aptly described as fascist without the marked presence of these other factors. The novel aspect of the present configuration of power is that it is as much international as national. Trans-national corporations now have global interests rivaling or exceeding their national ones. They need the US military to make the world safe for capitalism, but they are anything but super-patriots. They are far more interested in ceding national power via trade agreements, for example, than in fixing the American infrastructure to keep the American economy strong and the populace content. Rather than seeking to unite the American people, they seek to divide us over cultural issues, to keep us politically powerless, while they govern through a bought-and-paid-for Congress, Presidency, and judiciary.
Indiscriminately calling one's opponents "fascist" (or "socialist," or "communist" simply degrades the terms and muddies the waters of clear thought.
Indiscriminately calling one's opponents "fascist" (or "socialist," or "communist" simply degrades the terms and muddies the waters of clear thought.
10
I would have to agree with you, Robert. Fascism is just a word we use because one hasn't been invented. Plutocracy or oligarchy, however, omit the key corporate influence factor, which is captured in "fascism". I am also versed in history, and live in Alameda but went to Berkeley. Email if you would like to discuss, [email protected]
"all a Supreme Court nominee would have to say" would of course be of little or no weight to the Senators judging a nominee. They are well aware that people don't always tell the truth and especially that Court nominees will now do almost anything to conceal their real inclinations under questioning by the Senate. Previous judgements and writings will be what are used - and maybe private assurances.
And by now the public also should know that public statements by nominees during confirmation have little meaning. The more that is known about Court candidates the better - this is more important than public statements by Presidential candidates. The inclinations of the latter are usually obvious.
And by now the public also should know that public statements by nominees during confirmation have little meaning. The more that is known about Court candidates the better - this is more important than public statements by Presidential candidates. The inclinations of the latter are usually obvious.
10
Free speech and corruption are just crude stalking horses for the more difficult and real problem - 'conflict of interest' and public's perception of and trust in the political, economic, judicial, etc. ... systems of the country.
Trust, unlike what the voodoo economists say is extremely important in a polity - the alternative is vast system support costs in prisons, police forces etc. ... with huge "opportunity costs". The old common law aphorism ' Caesar's wife must not only be virtuous she must appear virtuous' lies in ruins in terms of governance. In the USA 'Caesar's wife' is widely perceived as a cold hearted hooker willing to slip you a Mickey Finn on behalf of what ever 'shanghai' artists pays her the most.
Right now I am willing to bet that two thirds of the citizens of the USA do not trust or believe the rhetoric of the systems that control their lives.
There will always be conflicts of interest in a democratic political system and the remedy is stringent transparency (possibly requiring a Constitutional Amendment) and tough minded regulations armed with real investigative and sanction powers.
Why transparency first ? let the people see and judge the totality of the money involved not just with the primary 'corruptors' but the secondary 'corruptors' who find facilitating the primary corruptors so profitable (the media comes to mind particularly TV stations which would go broke without massive political ad expenditures).
Trust, unlike what the voodoo economists say is extremely important in a polity - the alternative is vast system support costs in prisons, police forces etc. ... with huge "opportunity costs". The old common law aphorism ' Caesar's wife must not only be virtuous she must appear virtuous' lies in ruins in terms of governance. In the USA 'Caesar's wife' is widely perceived as a cold hearted hooker willing to slip you a Mickey Finn on behalf of what ever 'shanghai' artists pays her the most.
Right now I am willing to bet that two thirds of the citizens of the USA do not trust or believe the rhetoric of the systems that control their lives.
There will always be conflicts of interest in a democratic political system and the remedy is stringent transparency (possibly requiring a Constitutional Amendment) and tough minded regulations armed with real investigative and sanction powers.
Why transparency first ? let the people see and judge the totality of the money involved not just with the primary 'corruptors' but the secondary 'corruptors' who find facilitating the primary corruptors so profitable (the media comes to mind particularly TV stations which would go broke without massive political ad expenditures).
8
"“take us down a very dangerous path,” Nan Aron, president of Alliance for Justice, a liberal umbrella group long active in judicial confirmations, told Tony Mauro of The National Law Journal. “They will only prompt another litmus test on an issue like Roe v. Wade.”)"
I don't care. Take us down a dangerous path. Enact a litmus test. Let's get back to the spirit of the law rather than the letter of it.
And this is exactly why Hillary Clinton will get my vote. Because, despite this mumbo jumbo, she gets that this has been a huge issue. And she's willing to engage in a cage fight to fix it. Even if it means engaging her own party which of course likes it too. It's a boon for big business on either side of the aisle. They no longer have to even make a pretense to play by the rules. They can buy the senator of their choice and enact their fiefdom with impunity.
I don't care. Take us down a dangerous path. Enact a litmus test. Let's get back to the spirit of the law rather than the letter of it.
And this is exactly why Hillary Clinton will get my vote. Because, despite this mumbo jumbo, she gets that this has been a huge issue. And she's willing to engage in a cage fight to fix it. Even if it means engaging her own party which of course likes it too. It's a boon for big business on either side of the aisle. They no longer have to even make a pretense to play by the rules. They can buy the senator of their choice and enact their fiefdom with impunity.
83
Bravo!
"Let's get back to the spirit of the law rather than the letter of it. "
Do you agree that the spirit of the law is its original intent as best as it can be determined?
Do you agree that the spirit of the law is its original intent as best as it can be determined?
"In past years, Republican judge vetters would ask potential nominees to name examples of raw judicial activism. Those who failed to cite Roe v. Wade wouldn’t make it to the shortlist."
Any evidence to support this assertion, Ms. Greenhouse? You didn't cite any in your essay, so I'm wondering whether you have any. Please let us know if you do.
Any evidence to support this assertion, Ms. Greenhouse? You didn't cite any in your essay, so I'm wondering whether you have any. Please let us know if you do.
1
A call for a return to reason as the basis for running, and overseeing our democracy? Thank you, once again, Ms. Greenhouse, for you contributions to the discussion on what many of us see as a dysfunctional Supreme Court.
How opportune it is, then, that this little article has appeared in "The New Republic": http://www.newrepublic.com/article/121837/what-do-we-owe-enlightenment.
In this piece, the discussion is widened to include the entire Western attitude toward logic and power - involving Michel Foucault, and others, to explain the loss of Western (and contemporary, world-wide) confidence in the entire enlightenment program.
Scalia seems, at first glance, to be on the side of enlightenment thought. After all, he is a "strict constructionist," accepting the initial words of the founding fathers as gospel. And weren't they all "enlightenment" thinkers? But looking more deeply into his so-called reasoning, he proves Foucault's point on power, by applying rules devised for one historical context to another, vastly different context, resulting in a misapplication of law to reinforce certain power bases. A genuine enlightenment approach would involve debate to discover the key relevant facts, and then to allow for an evolution of our laws, based on original precepts, to cover contemporary conditions.
We can only hope that the quality of our elected officials rises soon enough to enable our courts, with intelligent justices, to rule on contemporary issues once again
How opportune it is, then, that this little article has appeared in "The New Republic": http://www.newrepublic.com/article/121837/what-do-we-owe-enlightenment.
In this piece, the discussion is widened to include the entire Western attitude toward logic and power - involving Michel Foucault, and others, to explain the loss of Western (and contemporary, world-wide) confidence in the entire enlightenment program.
Scalia seems, at first glance, to be on the side of enlightenment thought. After all, he is a "strict constructionist," accepting the initial words of the founding fathers as gospel. And weren't they all "enlightenment" thinkers? But looking more deeply into his so-called reasoning, he proves Foucault's point on power, by applying rules devised for one historical context to another, vastly different context, resulting in a misapplication of law to reinforce certain power bases. A genuine enlightenment approach would involve debate to discover the key relevant facts, and then to allow for an evolution of our laws, based on original precepts, to cover contemporary conditions.
We can only hope that the quality of our elected officials rises soon enough to enable our courts, with intelligent justices, to rule on contemporary issues once again
13
Linda Greenhouse nails it again: "If a Citizens United litmus test serves only to put the court on the campaign screen, where it urgently belongs, it will have done some good before the first vote is cast."
The next few appointments to the Court will determine the direction of the nation for much longer than any presidential term or terms. Ruth Bader Ginsberg is not the only medicare eligible justice, you know. Only Roberts, 55, Sotomayor, 60, and Kagan, 55, have yet to qualify.
Ruth Bader Ginsberg is 82 and going strong, as are Scalia at 79. Kennedy is 78, Breyer is 76, Thomas is 66, and Alito 65.
Before the 2020 elections four of them will be in their 80s, and only the baby, Kagan, won't be getting SS checks.
If the next president serves two terms, she (or he) may appoint, with or without litmus tests, several youthful members who will serve into the mid-century. Who do we want to supply the litmus to be tested? The NRA and the Heritage Society? It's a question that should be clearly placed before the electorate this cycle.
The next few appointments to the Court will determine the direction of the nation for much longer than any presidential term or terms. Ruth Bader Ginsberg is not the only medicare eligible justice, you know. Only Roberts, 55, Sotomayor, 60, and Kagan, 55, have yet to qualify.
Ruth Bader Ginsberg is 82 and going strong, as are Scalia at 79. Kennedy is 78, Breyer is 76, Thomas is 66, and Alito 65.
Before the 2020 elections four of them will be in their 80s, and only the baby, Kagan, won't be getting SS checks.
If the next president serves two terms, she (or he) may appoint, with or without litmus tests, several youthful members who will serve into the mid-century. Who do we want to supply the litmus to be tested? The NRA and the Heritage Society? It's a question that should be clearly placed before the electorate this cycle.
74
The fact that Citizens United was wrongly decided and badly reasoned, and is unpopular with a majority of Americans, still doesn't resolve the issue whether one should feel comfortable when Mrs. Clinton (and others) take the "litmus test" step with respect to potential nominees. I frankly feel uncomfortable with her stance for the obvious risk that it can come back to haunt when politicians I disagree with insist on similar conditions on other issues. Perhaps the only real point is that she should be more nuanced -- it perhaps less intellectually honest -- in her statements.
1
How can Ms. Greenhouse ignore last year's NY Times study of Supreme Court votes that diverged from the appointing President's viewpoint. In nearly all cases over the last 50 years the Democrat appointees voted in lock-step with their President. It was from the Republication appointees that came many votes widely at odds with their "supposed" party. History and the NY Times prove Democrats nominate 'parrots of the expected view' while Republics appoint the real independent thinker to the Court.
4
What happened was that nominees expected to be conservative actually shifted once appointed to the lifetime job of Justice. The most important case was Earl Warren but there have been others since. These appointments were deeply regretted by Republicans, and they have been much more careful to vet candidates since (usually - Presidents may still favor cronies).
6
How to mislead with "statistics"--
over the past FIFTY years, yes-- Warren, Blackmun, Souter
over the past FIFTEEN years, NO-- Scalia et al handing the election to George W. Bush rather than letting the state of Florida go through its own procedures; so much for States rights; gutting the civil rights voting act- after all, racial discrimination and efforts to disenfranchise are a phenomenon long behind us (??); opening the floodgates to virtually unlimited spending on candidates so that the Koch brothers can spend one billion (oh, ok-- only 900 million) dollars this next time around;
Would that Republican appointees of the past 25 years-- Thomas, Roberts, Alito-- had the character and integrity of Warren, Blackmun and Souter
over the past FIFTY years, yes-- Warren, Blackmun, Souter
over the past FIFTEEN years, NO-- Scalia et al handing the election to George W. Bush rather than letting the state of Florida go through its own procedures; so much for States rights; gutting the civil rights voting act- after all, racial discrimination and efforts to disenfranchise are a phenomenon long behind us (??); opening the floodgates to virtually unlimited spending on candidates so that the Koch brothers can spend one billion (oh, ok-- only 900 million) dollars this next time around;
Would that Republican appointees of the past 25 years-- Thomas, Roberts, Alito-- had the character and integrity of Warren, Blackmun and Souter
4
Could it be, "sad taxpayer," that the "Republican" positions were intrinsically untenable once seen from the perspective Court?
With the Citizens Union decision, many members of the electorate lost faith in the Supremes.
13
Ms. Greenwald, you wrote:
"The problem with Citizens United, it has always seemed to me, is not whether corporations have a right to spend money to express their political views. They do, and they did under decades-old Supreme Court precedent before Citizens United, ..."
The states have the authority to give birth to a corporation, by granting a corporate charter, and to impose the death penalty on a corporate wrongdoer by revoking its charter. At the very least, shouldn't the citizens of that state know the political views of a corporation by making its campaign financing transparent?
"The problem with Citizens United, it has always seemed to me, is not whether corporations have a right to spend money to express their political views. They do, and they did under decades-old Supreme Court precedent before Citizens United, ..."
The states have the authority to give birth to a corporation, by granting a corporate charter, and to impose the death penalty on a corporate wrongdoer by revoking its charter. At the very least, shouldn't the citizens of that state know the political views of a corporation by making its campaign financing transparent?
18
The Supreme Court would be much less important if we had a representative branch of government. Our three branches currently are judicial, executive, and a bicameral House of Lords. The U.S. Desperately needs a House of Commons.
67
Of course, that is what the House of Representatives was supposed to be. But, needing lots of money to get elected to the House begets "Lordships." There are, however, a few House districts where a candidate can go door-to-door, not spend lots, and still get elected. But those districts are becoming "endangered species."
Why do you think we have two House of Lords. A difference between the House of Lords and the House of Commons is that the members of the House of Commons are elected by the people and the House of Lords is apparently appointed.
Prior to the 17th amendment (direct election of senators) our Senators were appointed by the state legislatures and only the house of representatives with directly elected by the people. Currently the Senators and House Representatives are both directly elected. In that important sense both are now like the house of commons.
You might argue that our representatives don't act in the interest of the people but all are directly elected.
John
Prior to the 17th amendment (direct election of senators) our Senators were appointed by the state legislatures and only the house of representatives with directly elected by the people. Currently the Senators and House Representatives are both directly elected. In that important sense both are now like the house of commons.
You might argue that our representatives don't act in the interest of the people but all are directly elected.
John
Justice Kennedy's words are literally correct, but spiritually irrelevant. The injury done to government when the rich have unwarranted access to government is that the less rich have less access. Money makes access synonymous with influence.
All the case law in the world on 1-man-1-vote, and equal protection of the laws cannot restore the essential democratic role of a legislative body that has begun to operate by the principles of the Vatican Bank.
All the case law in the world on 1-man-1-vote, and equal protection of the laws cannot restore the essential democratic role of a legislative body that has begun to operate by the principles of the Vatican Bank.
28
You seem burdened with the assumption that tends to equate money with speech instead of one in which true democracy gives equal voice to all not just those with money. There are plenty of paths we could use to ensure this basic level of equality, they just tend not to find there way into discourse that is bound by the currently accepted path - thereby promoting a biased view of a possibly greater use of democratic involvement.
1
What you write about here is originally Bernie Sander's position. That Hillary Clinton has said "Me too" is very gratifying. It goes to show that Ms. Clinton is improved by having a liberal contender in the primaries.
57
Actually, Bruce, if you go back and check, you will find that both Bernie AND Hillary opposed CU from the beginning, and have both continuously stated their belief that it should be overturned. After all, don't forget that the CU decision was BASED on a documentary critical of Hillary. So she actually had far more reason to oppose it from the get-go than even Bernie did.
Yes, but it was Bernie who first declared that he would not nominate any candidate for the Supreme Court, if he were President, unless they too opposed CU. To that "litmus test" Hillary said "Me too."
As for "money isn't speech", another commentor last year correctly noted that "money ISN'T speech, but it IS volume". That's part of the reason people are against Citizens United; they correctly understand that the tiny squeak of their $20 donation will be drowned out by the deafening roar of donations 10,000 times that amount, regardless of merit.
109
It is so easy for a candidate to say she would appoint justices who believe that the decision should be overturned. It is hardly a profile in courage. It is hard to imagine a Democratic primary voter who likes the decision. And anyone she would consider for the high court would, justly. think the decision was atrocious.
What she has done is simply put GOP candidates on the spot -- but, only a minor one politically. It is a clever move from a candidate who seems never to have met a dollar she doesn't like. It requires virtually no work on her part. Maybe Republicans will say it is a matter for Congress. Is that such a terrible answer?
Anway, it seems unlikely many Republicans -- regardless of what they believe -- will go around saying, "Corporations are people, too." It didn't work well for their last nominee.
What she has done is simply put GOP candidates on the spot -- but, only a minor one politically. It is a clever move from a candidate who seems never to have met a dollar she doesn't like. It requires virtually no work on her part. Maybe Republicans will say it is a matter for Congress. Is that such a terrible answer?
Anway, it seems unlikely many Republicans -- regardless of what they believe -- will go around saying, "Corporations are people, too." It didn't work well for their last nominee.
4
Citizens United has never been an issue. It has been a self-serving Congress that has consistently failed to enact campaign finance reform. Within the strictures (regardless of what one believes is right or wrong on broad measures), Congress has substantial leeway in designing campaign laws that would favor broader participation and transparency. Placing the blame on the Supreme Court once again absolves our legislative branch from ... legislating in favor of manipulation of outcomes through attempts to stack the Courts. Congress, Legislate! People, vote out members of Congress who fail to do their jobs. We should not be legislating from the court
4
Ms. Greenhouse is certainly correct when she says:
" It’s hardly a favor to a Supreme Court nominee for a president even to suggest a desired quality beyond intellectual brilliance and fidelity to “the law.” "
but the judicial activism of the Citizens United/McCutcheon SCOTUS that Roberts is presiding over, making new law regarding corporate person-hood and the religious beliefs of corporations, deems it entirely valid to ask potential nominees how they view the constitution's protection of corporations' rights.
" It’s hardly a favor to a Supreme Court nominee for a president even to suggest a desired quality beyond intellectual brilliance and fidelity to “the law.” "
but the judicial activism of the Citizens United/McCutcheon SCOTUS that Roberts is presiding over, making new law regarding corporate person-hood and the religious beliefs of corporations, deems it entirely valid to ask potential nominees how they view the constitution's protection of corporations' rights.
47
I generally find that I agree with Professor Greenhouse, but not this time. The fact is, "Speech without money is speech that no one is going to hear" is only true if money is allowed into the process in the first place. If I have a bigger bullhorn I can outshout you. Money is that bullhorn. Remove the bullhorn entirely, and we all have a voice, and the persuasiveness and reason of our words have equal sway. But, that's not what the powerful want in this nation, as that too much resembles democracy.
87
I don't understand. Are you advocating the abolition of all political donations including my $20 donation? My small donation is used by the candidate of my choice for the same purpose as the gross amounts being poured into campaigns by corporations. If we returned to caps on donations the money bullhorn each candidate has would represent more realistically the number of voters who support that candidate.
An important part of Justice Kennedy's history is that his father was the head of the most influential legal/lobbying firm in California. Justice Kennedy took over the firm himself for a while after his father died.
This helps explain, but does not excuse, the phrasing of the Citizens United opinion.
We see the damage every day, with candidates for the presidency and the legislature having dedicated hyper-wealthy personal sponsors, some of which hold their own private ''primaries'' to decide which candidate will get their money.
Only those willing to bow and scrape can consider running for office, hardly the representatives of the people the Framers had in mind.
This helps explain, but does not excuse, the phrasing of the Citizens United opinion.
We see the damage every day, with candidates for the presidency and the legislature having dedicated hyper-wealthy personal sponsors, some of which hold their own private ''primaries'' to decide which candidate will get their money.
Only those willing to bow and scrape can consider running for office, hardly the representatives of the people the Framers had in mind.
72
“The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.” Justice Kennedy
This sounds like something out of a George Orwell novel.
This sounds like something out of a George Orwell novel.
130
In passing a new Litmus Test
The thing nominees would do best,
Like a Trooper lying
A cortex decrying
With humility free of zest.
The thing nominees would do best,
Like a Trooper lying
A cortex decrying
With humility free of zest.
7
The Hobby Lobby decision and the gutting of the Voting Rights Act were equally low points in denying basic American rights to women and to minority voters. Democracy cannot survive more courts like the Roberts Court.