Situated at the corner of Fairfax and Wilshire in Los Angeles, the iconic Johnie’s Coffee Shop was where Mr. Pink plotted a diamond heist in Reservoir Dogs and where Walter offered to obtain The Dude a toe in The Big Lebowski. But it has never witnessed malfeasance like the villainy that has unfolded there over the last few weeks. Johnie’s has been converted into a hub of unregulated advocacy for Bernie Sanders’ presidential campaign.
The Roberts Court’s decisions on campaign finance are its most important, because campaign regulation shapes the elections that affect all policy outcomes. No issue has generated more unyielding divisions on the Court. A fault line generally divides the principles of one set of the Justices—Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito—from those generally in dissent—Justices Ginsburg, Breyer, Sotomayor, and Kagan currently (and Souter and Stevens when they were on the Court).
I have a new paper that explains the division of the justices. The majority believes that campaign finance regulations should be analyzed under free speech principles established in other contexts. The latter generally seeks to decide campaign finance regulation issues by considerations unique to campaign finance regulation.
This doctrinal disagreement plays out at a variety of levels. The Citizens United majority protected corporations in the context of campaign finance regulation as the Supreme Court has in other areas of the First Amendment. The dissenters would not have. That majority rejected as interests asserted for the regulation, like concerns over distortion or equality, when they were rejected elsewhere in First Amendment jurisprudence. The dissenters would have accepted such interests as justifications. The Justices also disagreed on the doctrinal tests to be applied to assess the bona fides of campaign finance regulation. The Citizens United and McCutcheon majorities applied traditionally stringent tests for justifying intrusion on First Amendment interests. The dissenters would have given deference to the legislature.
Finally, the majority and the dissenters persistently disagreed on the structure of the First Amendment itself.
Time asked 16 law professors what they thought were the worst Supreme Court decisions since the 1960s. It is an illuminating enterprise, not because the answers are particularly interesting but because it perfectly illustrates the mindset of the traditional media and the legal academy today.
Begin with Time. While the academy leans about eleven to two to the left, Time managed to exacerbate that disparity, picking only one conservative to participate and what appear to be 15 professors on the left side of the American political spectrum. Then it gave the professors an absurdly small amount of space to explain their reasons—so small that it would be almost impossible to give a reasoned legal critique of any decision. Thus, Time encourages the view that what is important about a decision is whether the result accords with one’s preferences rather than if it is correctly reasoned.
But even given the poor structure for the assignment, the answers are often thoughtless and sometimes wrong even on their own terms.
The story of this term has been a united block of the left on the Court, where Justices on the right were fractured. I have suggested that one important reason is that justices on the right take jurisprudence seriously, whereas the left are ideologically motivated. More evidence for this proposition comes from the observation that even when the right won, their justices often wrote separately. It is reason not result that counts for them. And this is as it should be: insistence on right reason affirms the rule of law. A focus on results is just about political power.
In contrast, when the left was in the majority, they tended to join opinions as one, even when they were as doctrinally unpersuasive as Justice Anthony Kennedy’s in the same-sex marriage case. The senior justice on the left boasted she kept her voters in line. Indeed the real division on the Court is between legalists of various kinds and ideologues of one kind.
What is to be done? Above, all win a Presidential election. Ultimately if we are to preserve the Constitution as a rule of law, we must elect someone committed to justices who will interpret it as other law, not a vessel for advancing the left’s ideology. Yet the leading candidate of one of our parties has already said that what matters to her is not jurisprudence but a result—the overruling of Citizens United, a case that perhaps not coincidentally permitted citizens to use a corporate form to distribute a film that criticized this candidate herself.
But what can be done in the interim by the justices themselves?
The National Constitutional Center has inaugurated a series of debates around the country on recent Supreme Court cases. Two weeks ago the proposition for dispute in Boston was: “Citizens United was wrongly decided.’ I took the negative side with Anthony Johnstone of Montana Law School in the affirmative. The Center recently posted the debate online.
The audience was decidedly hostile to Citizens United. The Center took a poll at the beginning of the debate. 76 percent of the audience were opposed and only 24 percent in favor. After the debate 65 percent were opposed and 35 percent in favor. I had persuaded some listeners, but not enough to turn the tide.
Why does Citizens United elicit such visceral hostility from most audiences?
In Burwell v. Hobby Lobby, Justice Ruth Bader Ginsburg drew a sharp contrast between for-profit and religious organizations. Whereas for-profits are “organized to do business in the commercial world,” religious organizations, she said, serve citizens as believers. The strict separation between commerce and other spheres of civic life is also reflected in the common complaint that the Supreme Court in Citizens United wrongly reached out to extend First Amendment protection to for-profit corporations as well as the non-profit corporation actually at issue in the case.
The attempt to deprive for-profit enterprises of the rights to participate in political and civic life is characteristic of modern left-liberalism, which seems to believe that for-profit activity is inherently less civic-minded than not-for-profit endeavors. The distinction is not altogether new. For centuries nobles disdained those in trade and asserted that merchants should have fewer rights than they did. This stance is yet another instance where social democrats want to create a society based on status distinctions rather than on the exercise of equal legal rights.
But the distinction is not a sound one.
Hillary Clinton has made her first statement about what she wants in a Supreme Court justice. Instead of focusing on jurisprudential philosophy, Clinton has laid out a litmus test defined by a particular case: her justice must be committed to overruling Citizens United.
This comment shows that Clinton wants to abridge core political freedoms and to create two classes of citizens—the scribal class which has special privileges to speak at election time and the rest of us who are prevented from disseminating our views as effectively. Recall that Citizens United was a non-profit corporation that put out a video that criticized none other than Hillary Clinton, then as now running in a primary for the Democratic presidential nomination. The McCain-Feingold legislation made such criticism by a corporation illegal in the run-up to a primary, but the Supreme Court struck down this prohibition as violating the First Amendment. The legislation expressly exempted media corporations from its prohibitions, creating a distinction between those in the media and everyone else.
The Court’s decision was clearly correct. As I argued fifteen years ago, and as Mike McConnell has since developed independently at much greater length, the dissemination of such independent views is encompassed within the freedom of the press.
Modern progressivism’s relatively weak legislative coalition explains much of the behavior of the Obama administration and the new threats it poses to our constitutional order. As I discuss in an article just published in the City Journal, under FDR and even LBJ, the Democratic party had much more enduring power in Congress. Moreover, these administrations were not nearly so hamstrung as is the Obama administration by deficits and high government spending caused in no small measure by previous progressive experiments. Thus, previous progressive administrations could often be more forthright in the proclamation of their goals and rely on their large legislative majorities to enact and revise the central parts of their programs.
But the Obama administration needs to compensate for its relative weakness by misleading the public and exalting executive power even beyond the previous efforts of progressives. For instance, the President’s repeated promise that you can keep your health care insurance and doctor was necessary to enact the Affordable Care Act, because in our more affluent society the great majority are happy with their health care. As I note in the piece:
Dahlia Lithwick has recently complained that the Supreme Court is made up of elites. Hers is not the usual complaint of conservatives that the justices are writing their elite values into the Constitution rather than following the law. It is rather that the justices evince selective empathy—only for elites. According to Lithwick, we need justices who will decide in favor of non-elites on empathetic grounds.
If justices were to follow Lithwick’s advice, the rule of law would disappear. Particularly in disputes that rise to the level of the Court, both parties may deserve empathy. For example, Lithwick praises Sonia Sotomayor’s defense of preferences in Schuette v. Coalition to Defend Affirmative Action. And surely minorities striving for success who may gain admission to elite colleges because of such programs deserve our empathy. But why don’t those who are denied a place because of their race deserve our empathy as well? Feeling provides no plausible rule of decision.
In fact, because empathy tends to focus on the seen rather than the unseen, à la Bastiat, it can profoundly mislead us.