The Supreme Court announced today that it will hear a critical voting rights case next year. Arizona has appealed a 9th Circuit decision that barred the state from requiring proof of citizenship from those registering to vote via a federally-approved registration form. Current federal law allows voters to register via federal form instead of a state-specific form. Those opting to do so must swear under penalty of perjury that they are citizens. Arizona’s law, which is currently stayed, would require voters using that form to jump over an extra hurdle to register, requiring them to show proof of their citizenship, a provision disproportionately affecting low-income and minority voters.
The AP explains:
The ruling applies only to people who seek to register using the federal mail-in form. Arizona has its own form and an online system to register when renewing a driver's license. The court ruling did not affect proof of citizenship requirements using the state forms.
Arizona officials have said most people use those methods and the state form is what county officials give people to use to register. But voting rights advocates had hoped the 9th Circuit decision would make the federal mail-in card more popular because it's more convenient than mailing in a state form with a photocopy of proof of citizenship.
The mail-in card is particularly useful for voter registration drives, said Robert Kengle of the Lawyers' Committee for Civil Rights Under Law, which is representing Native American and Hispanic groups in the case.
The conservative wing of the Supreme Court has been eager to challenge voting rights laws in recent years. In 2008, a 6-3 majority of the court upheld Indiana’s voter ID law, paving the way for suppressive voter ID measures throughout the country. The Court may also hear a challenge to section 5 of the Voting Rights Act, which requires federal preclearance for voting rights changes in states and counties with a history of discrimination at the ballot box. Successful court challenges to discriminatory voting law changes this year have shown just how essential that provision still is.
While the composition of the Supreme Court is unlikely to change before these cases are heard, they underscore the importance of federal courts in this election. Not only are federal courts the final protection we have against discriminatory voter suppression laws, the makeup of these courts is on the line in the presidential election. Either Mitt Romney or President Obama could pick up to three Supreme Court Justices and dozens of federal court judges in the next term. Romney has promised to appoint Justices like Antonin Scalia and Clarence Thomas, who have both signaled their hostility to voting rights. If he does, and the Court shifts farther to the right, we could see decades of progress for fair and free elections slip away.
On CNN’s website today, legal analyst Jeffrey Toobin laments out how small a role the Supreme Court has played in the presidential election so far. He writes:
With a little more than a month to go, it's not too late to ask the candidates to take a stand on their plans for the court. The president has already had two appointments, and he named Sonia Sotomayor and Elena Kagan. But what does Obama, a former law professor, think about the court? Does he believe in a "living" Constitution, whose meaning evolves over time? Or does he believe, like Justices Scalia and Thomas, that the meaning of the document was fixed when it was ratified, in the 18th century.
By the same token, what kind of justices would Romney appoint? Who are his judicial role models? Romney has praised Chief Justice John Roberts, but is the candidate still a fan even after the chief voted to uphold the ACA?
No one is asking these questions. But there are few more important things to know about our current and future presidents.
Toobin is absolutely right that the candidates’ plans for the Supreme Court deserve a lot more air time than they’re getting. But he’s wrong to suggest that we know nothing about what President Obama and Governor Romney have in mind for the Court.
President Obama has already picked two Supreme Court justices. Both, Sonia Sotomayor and Elena Kagan, have been strong moderates, balancing out the retro extremism of Justices Scalia and Thomas. When female Wal-Mart employees wanted to band together to sue their employer for pay discrimination, Sotomayor and Kagan stood on the side of the women’s rights, while Scalia and Thomas twisted the law to side with the corporation. When Justices Thomas and Scalia ruled that a woman harmed by a generic drug couldn’t sue the drug’s manufacturer in state court, Justices Sotomayor and Kagan stood up for the rights of the consumer.
Mitt Romney obviously hasn’t had a chance to pick a Supreme Court justice yet, but he’s given us a pretty good idea of who he would choose if given the opportunity. On his website, Romney promises to “nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.” After the Supreme Court’s ruling in the health care reform case, Romney announced he had changed his mind about Roberts, who declined to destroy the law while still writing a stunningly retrogressive opinion redefining the Commerce Clause.
And, of course, Romney sent a clear signal to his conservative base when he tapped Robert Bork to advise him on legal and judicial issues. Bork’s record, and what he signals about Romney’s position on the Supreme Court, is chilling:
Romney’s indicated that he would want the Supreme Court to overturn Roe v. Wade. He’s even attacked the premise of Griswold v. Connecticut, the decision that prohibited states from outlawing birth control by establishing a right to privacy.
Yes, the candidates should be made to answer more questions about their plans for the Supreme Court and the lower federal courts. But there’s a lot that we already know.
(For more, check out PFAW’s website RomneyCourt.com.)
Timothy K. Lewis, a George H.W. Bush nominee who served on the Third Circuit Court of Appeals from 1992 through 1999, offers some perspective on how judicial confirmations were handled before they became mired in hyper-partisan gridlock:
Nineteen years ago, in the fall of 1992, I was nominated by President George H. W. Bush for a seat on the United States Court of Appeals for the Third Circuit. My confirmation hearing lasted one hour. In fact, I had no time to prepare for it. As a federal district judge, I was in the courtroom, charging a jury, when my secretary burst in with the news that my Senate hearing was to be the very next day. That is how much notice I had. When the vote was called only a few days later, I was unanimously confirmed.
Don’t get me wrong. This is not to celebrate me. It is to reflect on a better time for our politics and ask how things went so wrong. Among the 192 Article III judges confirmed during the elder Bush’s presidency, only David Souter and Clarence Thomas faced confirmation battles (with Thomas undergoing a very difficult confirmation battle). But, of course, they were under consideration for the Supreme Court.
Compare that now with the Obama administration. The president has had only 96 Article III nominations confirmed and 55 others remain in limbo, awaiting Senate action. They are stuck in a process that should by all constitutional standards remain rigorous, but shouldn’t it also be productive? In the same period of time, George W. Bush had 322 confirmed nominees and Bill Clinton had 372 confirmed.
The Obama administration was slow out of the gate on this one – nominations trickled forth in the early days of the administration when the President’s team should have been well-prepared with the names of nominees. But a considerable amount of the fault for this also has to be laid at the feet of Republicans who have made it a badge of honor to frustrate this President, himself a man of the law, from shaping the federal courts he inherited from George W. Bush. If you doubt this conclusion, reflect for a moment on the Senate minority leader’s comment shortly before the 2010 mid-term election when he said that the top – top — political priority over the next two years should be to deny President Obama a second term in office. Really, Senator? So where on the priority list do we put conducting the Senate’s constitutional business?
The gridlock in judicial nominations has been one of the less-noticed bits of collateral damage from the congressional GOP’s scorched-earth policy. But it has caused very real harm to Americans seeking justice in courts around the country -- there are currently 37 judicial emergencies in the federal courts in areas where the sitting judges are too overworked to provide prompt access to justice. Last week, Senate Republicans made an exception to their gridlock rule to fill the most publicized of those emergencies: the seat of Arizona Judge John Roll, who was murdered in the Phoenix shooting that critically injured Rep. Gabrielle Giffords. Roll had stopped by the Giffords event to tell the congresswoman about the urgent need to fill vacancies on the court.
Senate Republicans’ commitment to delay was made particularly clear when they refused to allow a floor vote on 20 pending nominees, most of whom had advanced with no opposition. The Senate GOP’s foot-dragging on judicial nominees is clearly meant to hobble the president’s attempts at basic governance and preserve the dominance of conservative George W. Bush-appointed judges. But it also amounts to the shirking of a basic duty of the Senate: to fill the judiciary with capable, non-politically-motivated judges.
As we like to remind anyone who will listen, the current GOP senate has been shameless in its enthusiasm for obstructing judicial nominees just for the sake of obstruction. For instance, a PFAW memo on August 2 reported that of 24 nominees then waiting for confirmation votes, 21 had been voted through the Senate Judiciary Committee with no recorded opposition. Instead of sending through at least the unopposed nominees in a voice vote and moving on with its business, the Senate decided to keep these potential jurists off the bench for as long as possible – despite the pressing problem of unfilled judicial seats leading to slowed down justice. Ultimately, 4 of those nominees were confirmed by the Senate before it left for its August recess, and 20 remain waiting. (The Washington Post this morning lamented that such “gamesmanship is not only frustrating but also destructive”)
This sort of thing is a clear example of obstruction for obstruction’s sake. But what about the nominees who do face some GOP opposition? Last week, The Atlantic’s Andrew Cohen took an in-depth look at some of President Obama’s nominees who were ultimately confirmed by the Senate, but who received more than 25 “no” votes. The reason? Most were opposed because of a record fighting for civil liberties or against big corporations. Here are a few of Cohen’s examples:
7th U.S. Circuit Court of Appeals Judge David Hamilton (Votes 59-39). Even though his local Federalist Society endorsed this nephew of former Congressional leader Lee Hamilton, Senate Republicans mostly didn't because, as a trial judge, Hamilton had issued this 2005 ruling which had infuriated the religious right. Citing Supreme Court precedent, Judge Hamilton had ruled that Indiana's legislative prayer before each session could no longer be "sectarian" and regularly invoke the name of Jesus Christ.
Northern District of Ohio Judge Benita Y. Pearson (Votes 56-39). The first black female federal jurist in Ohio almost didn't get the gig. The precise reasons why are unclear. The People for the American Way suggested that she was a member of an animal rights group and thus earned the wrath of those in the cattle industries -- although 39 "no" votes is quite a lot of beef to have against a pioneering jurist.
District of Colorado Judge William J. Martinez (Votes 58-37). By contrast, it is not hard to understand why this Mexico-born nominee roused so much Republican opposition on the floor of the Senate. Before he was nominated, Martinez advised the Americans with Civil Liberties Union and was a lawyer for the Equal Employment Opportunity Commission (just like Clarence Thomas before him, only Justice Thomas' EEOC experience evidently was a boon for his nomination). Of nominee Martinez, Sen. Jeff Sessions (R-Ala.) said: "It seems that if you've got the ACLU DNA you've got a pretty good leg up to being nominated by this president."
District of Rhode Island Judge John J. McConnell (Votes 50-44). It's also fairly clear why Judge McConnell almost didn't make it onto the bench. Senate Republicans didn't like him because the U.S. Chamber of Commerce didn't like him because, as a lawyer, McConnell had successfully sued Big Tobacco and fought for those harmed by lead paint. Evidently that's five Republican votes more serious in the Senate than ticking off Big Beef.
Northern District of California Judge Edward M. Chen (Votes 56-42). Like Judge Martinez, Edward Chen evidently was touched with the "ACLU gene," which rendered him objectionable to Senate Republicans. Sen. Charles Grassley (R-Iowa), whose state's Asian population is nearly three times lower than the American average, voted against Chen because he thought the well-respected former magistrate judge employed the "empathy standard" of judging.
District of Oregon Judge Michael H. Simon (Votes 64-35). Harvard educated? Check. Prior government experience with the Justice Department? Check. So why 35 "no" votes? Because Simon had worked for the ACLU. The seat he took on the federal bench, reported the Oregonian, had been vacant for 664 days, two months short of two years. How would you like to have been a litigant in Oregon during that time?
All of these nominees were ultimately confirmed – but not after plenty of stalling and debate over the value of “ACLU DNA” or of holding big corporations accountable for their actions. When we talk about the many nominees who are unopposed yet unaccountably stalled, it’s important to remember that the few nominees who do face GOP opposition don’t always face that opposition for the most convincing of reasons.
Supreme Court Justice Clarence Thomas is generating quite a bit of attention these days. Questions abound – not from him, as he hasn’t asked a question during oral arguments for over five years – but from citizens concerned about the integrity of the Court.
Last week, the New York Times profiled Mr. Thomas’ relationship with wealthy corporate benefactors who often have business before the Court. Among them, a man Dallas real estate magnate named Harlan Crow, who generously offered Justice Thomas a $19,000 bible once belonging to Frederick Douglass, half a million dollars to Thomas’ wife so she could start a Tea Party group, and even generous contributions to museums featuring exhibits in the Justice’s honor.
Thomas has attended Koch-sponsored political fundraisers, which underwrite the very sort of front groups that now, thanks in part to Thomas’ vote in the Citizen’s United case, do not need to disclose their spending. And Thomas failed to recuse himself from three cases in which the American Enterprise Institute, which had given him a $15,000 gift, had filed a brief. It’s nice to get nice things, but if you sit on the Supreme Court of the United States, it is a serious problem if those gifts potentially influence – or appear to influence – your official conduct.
Perhaps the root of the problem is that the Judicial Conference Code of Conduct does not apply to Supreme Court justices. A movement is underway in Congress to address this gaping hole in our judicial ethical standards – a flaw that helps create an appearance that justice can be bought by the highest bidder. In a step to fix this flaw, Rep. Christopher Murphy (D-CT) is circulating a letter urging the House Judiciary Committee to investigate potential abuses by Justice Thomas and to consider applying the ethical code of conduct to the Supreme Court as a means to restoring the public’s faith in the integrity of the court.
Considering the concerns raised about Justice Thomas’ potential disregard of ethical boundaries, this call for an investigation is coming none too soon.
Check out an article on the subject in the Huffington Post by PFAW President Michael Keegan.
In the year since the Supreme Court’s decision in Citizens United v. FEC, there has been new scrutiny on the increasingly cozy relationship between corporate funders of elections and national policy makers. Exemplifying that relationship have been the Koch brothers, billionaires whose dollars have helped to fund right-wing organizations and campaigns for years, and who were behind one of the most powerful outside groups in the 2010 elections, Americans For Prosperity. The brothers also hold twice-yearly meetings of influential donors, pundits, and politicians—past guests have included Glenn Beck, Sens. Jim Demint and Tom Coburn, and even Supreme Court Justices Antonin Scalia and Clarence Thomas (both of whom were in the Citizens United majority).
The Kochs held their most recent strategy meeting at a spa in Palm Springs this weekend. Attending the secretive event was House Republican Leader Eric Cantor, among other undisclosed guests. Outside were 800-1,000 protestors, 25 of whom were arrested for trespassing. The LA Times reports:
Protest organizers said they hoped to raise awareness about the Koch brothers and what activists portray as their shadowy attempts to weaken environmental protection laws and undercut campaign contribution limits.
The brothers control Koch Industries, the nation's second-largest privately held company. They have funded groups pushing a limited-government, libertarian agenda, helped organize "tea party" groups and contributed $1 million to a failed ballot initiative to suspend California's law to curb greenhouse gases.
"We cannot have democracy unless everyone has a voice," said Cathy Riddle, a Temecula website developer who held a sign reading "Corporations are not people." Donors like the Koch brothers are "drowning us out," she said. "Their voices are louder."
The protest, organized by Common Cause, included some members of People For the American Way. It came one week after activists, in events around the country, marked the first anniversary of Citizens United and called for a constitutional amendment to reverse it. Watch PFAW’s video explaining the decision and its impact:
Supreme Court Justices Antonin Scalia and Clarence Thomas raised eyebrows and ethics questions late last year when they attended a conference sponsored by Charles and David Koch, the billionaire brothers who head Koch Industries. A comprehensive expose from The New Yorker reported on the Koch Brother’s immense financial and ideological ties to right-wing and pro-corporate groups, and the Koch-sponsored event that Scalia and Thomas attended was held “to review strategies for combating the multitude of public policies that threaten to destroy America as we know it.” The Koch Brothers have greatly benefited from the Supreme Court’s pro-corporate rulings, including the Citizens United decision which allowed corporations to use funds from their general treasuries to finance, sometimes secretly, political organizations. Tomorrow is the first anniversary of Citizens United, and Common Cause is requesting that the Justice Department look into whether Justices Scalia and Thomas should have recused themselves from the case:
The government reform advocacy group Common Cause today asked the Justice Department to investigate whether Supreme Court Justices Clarence Thomas and Antonin Scalia should have recused themselves from the landmark Citizens United vs. Federal Election Commission decision because they were involved with an array of conservative groups that stood to benefit from it.
In the case, the Supreme Court by a 5-4 margin struck down a provision of the McCain-Feingold campaign finance act that prevented corporations and unions from spending an unlimited amount of money on electioneering, such as campaign ads. Scalia and Thomas sided with the majority in the decision, which was made a year ago this week.
In a letter addressed to Attorney General Eric Holder, Common Cause President Bob Edgar said both justices should have been disqualified from hearing the case because of their ties to Charles and David Koch, wealthy brothers who fund an array of conservative causes.
The justices both attended “retreats” held by Koch Industries, Edgar said, that focused on championing conservative ideas including opposition to campaign finance laws.
Their attendance raises the question of whether the two judges were impartial in their decision, Edgar said. He also questioned Thomas's impartiality because his wife, Ginny, ran a nonprofit group that Edgar said benefited greatly from the Citizens United decision.
“Until these questions are resolved, public debate over the allegations of bias and conflicts of interest will serve to undermine the legitimacy of the Citizens United decision,” Edgar said.
Justices Clarence Thomas, joined by Justice Antonin Scalia, issued an interesting dissent yesterday to the Supreme Court's decision not to hear a challenge to a federal law making it a federal crime for a convicted felon to buy, own, or possess body armor (such as a bullet-proof vest) that had ever been sold in interstate or international commerce, even if the felon himself did not obtain it through interstate or international commerce. Congress passed the law as an exercise of the power granted it by the Constitution's Commerce Clause.
The rejected challenge in Alderman v. U.S. asserted that Congress had gone beyond the power granted to it by the Commerce Clause - the same argument that opponents of the landmark healthcare reform legislation have made. Since the constitutionality of the healthcare law under the Commerce Clause will likely be decided by the Supreme Court, Thomas and Scalia's dissent in this case may be a window into how they will rule in that case.
The Los Angeles Times gives one interpretation of the Court's decision:
The Supreme Court may not be so anxious to rein in Congress' broad power to pass regulatory laws under the Constitution's commerce clause, the key point of dispute in the pending court battles over President Obama's health insurance law. ...
The majority's decision, rendered without comment, could make it more difficult for those challenging health insurance reform to win court orders overturning parts of the new law. ...
Thomas referred to a pair of decisions, beginning in 1995, in which the court's conservatives, led by Chief Justice William H. Rehnquist, sought to put clearer limits on Congress' power. ...
But since Chief Justice John G. Roberts Jr. arrived in 2005, the court has not moved to restrain federal power.
A Justice can have any number of reasons for not wanting to hear a case — perhaps the Justice agrees with the lower court, or the issue is not important enough, or the facts of the case make it an inconvenient vehicle to discuss the legal issue, or there has not yet been enough debate among the circuit courts. As in this case, the public rarely knows why the Court voted not to grant cert.
For any of the Justices to voice their disagreement when cert is denied is unusual, and it suggests that they feel strongly about the issue at stake. In the body armor case, Justices Thomas and Scalia wrote:
Today the Court tacitly accepts the nullification of our recent Commerce Clause jurisprudence. Joining other Circuits, the Court of Appeals for the Ninth Circuit [uses reasoning that] threatens the proper limits on Congress' commerce power and may allow Congress to exercise police powers that our Constitution reserves to the States. ...
[The lower courts’ interpretation of the Commerce Clause] seems to permit Congress to regulate or ban possession of any item that has ever been offered for sale or crossed state lines. Congress arguably could outlaw the theft of a Hershey kiss from a corner store in Youngstown, Ohio, by a neighborhood juvenile on the basis that the candy once traveled to the store from Hershey, Pennsylvania.
Such an expansion of federal authority would trespass on traditional state police powers. We always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power.
While the dissent addresses this case alone, the fact that they issued it may reflect a strong desire to limit the scope of the Commerce Clause across the board. That would likely have an impact on the healthcare case when it reaches the Supreme Court. It may also signal their willingness to strike down acts of Congress that would unquestionably have been found constitutional in the past.
Historically, the Commerce Clause has been one of the most powerful tools that the American people have to impose reasonable regulations on giant corporations — and to hold them accountable when they do wrong. Justices Thomas and Scalia have been reliable supporters of Big Business on the Corporate Court. Any narrowing of the scope of the Commerce Clause needs to be viewed with caution.
Last week, SCOTUSBlog had a podcast interview with legal scholar Erwin Chemerinsky, discussing his new book The Conservative Assault on the Constitution. The blog has asked Chemerinsky some follow-up questions, and his responses are worth reading.
For instance, he discusses the concept of a living Constitution and the hypocrisy behind the Right's claims of a consistent approach to judging cases.
Q. Within the context of the "conservative assault" you discuss in the book, can you please define the terms "living constitution" and "strict constructionist"?
- Everyone is a strict constructionist in that everyone believes that the text of the Constitution should be followed where it is clear. But the phrase "strict constructionist" was coined by Richard Nixon to refer to something more ideological: Justices who followed the conservative approach to interpreting constitutional provisions. Interestingly, conservatives are not strict constructionists in interpreting the Second Amendment. There conservatives read the Second Amendment as if it simply said "the right of the people to keep and bear arms shall not be infringed." They ignore the first half of the Amendment which speaks of the right existing for the purpose of having a well-regulated militia.
A belief in a "living Constitution" rejects the notion that the meaning of a constitutional provision is the same in 2011 as when it was adopted. A living Constitution says that in interpreting the Constitution, Justices and judges should consider history, tradition, precedent, and modern needs. There always has been a living Constitution and hopefully always will be. The opposite of a living Constitution is a dead Constitution and no society can be governed under that.
He also discusses how self-professed conservative "originalists" are selective in when they pay attention to original intent.
Q. You write in your book that "it is clear that conservatives often abandon the original-meaning approach when it does not serve their ideological purposes." Can you please elaborate - perhaps by providing an example or two?
- Affirmative action. I am skeptical that we can ever really know the original intent or meaning for a constitutional provision. But if ever it is clear, it is that the drafters of the equal protection clause of the Fourteenth Amendment intended to allow race-conscious programs of the sort that today we call affirmative action. The Congress that ratified the Fourteenth Amendment adopted many such programs. Yet originalist Justices, like Antonin Scalia and Clarence Thomas, pay no attention to this history in condemning affirmative action. Another example is campaign finance. There is absolutely no indication that the drafters of the First Amendment intended to protect the speech of corporations (that did not occur for the first time until 1978) or spending in election campaigns. But conservative Justices nonetheless find a First Amendment right for corporations to engage in unlimited expenditures in campaigns.
Of course, that is a reference to Citizens United, where the aggressively activist Roberts Court handed our elections over to powerful corporate interests. There is a direct line from that case to the new corporate-friendly gang that will be running the House of Representatives for the next two years.
Who sits on the Court has consequences for us all.
When the Supreme Court decided earlier this year to allow corporations to spend unlimited amounts of money to influence elections, the justices in the majority (save Justice Clarence Thomas) took care to note that “prompt disclosure” of political spending would allow citizens to hold candidates, and their funders, accountable. It’s a nice idea…but things haven’t exactly worked out that way.
Instead, Public Citizen reported last week, in the first election after Citizens United, groups funneling money to political activities have increasingly been hiding where their money comes from.
Only 32 percent of the organizations broadcasting electioneering communications in the 2010 primary season revealed in their filings with the Federal Election Commission (FEC) the identities of donors funding their advertisements, according to Public Citizen’s analysis of FEC filings. In contrast, nearly 50 percent revealed their donors in the 2008 election cycle, and close to 100 percent did so in the 2004 and 2006 cycles. Electioneering communications are campaign ads run shortly before elections that focus on candidates but don’t expressly urge a vote for or against them.
Only 10 percent of Republican groups disclosed their funders, in contrast to 50 percent of Democratic groups.
This shouldn’t come as a surprise. As Target learned the hard way this summer, shareholders, consumers, and voters aren’t particularly keen on large corporations bankrolling political campaigns. Funneling money through secretive groups allows corporate political spenders to have the best of both worlds: they can fund the campaigns of candidates favorable to them, and never have to be held accountable.
An attempt this summer to patch up the loophole that allows corporations to keep their election spending secret ran up against stiff opposition from corporate lobbyists and a unified filibuster from the GOP. President Obama summed up the result in his weekly radio address Saturday:
What is clear is that Congress has a responsibility to act. But the truth is, any law will come too late to prevent the damage that has already been done this election season. That is why, any time you see an attack ad by one of these shadowy groups, you should ask yourself, who is paying for this ad? Is it the health insurance lobby? The oil industry? The credit card companies?
But more than that, you can make sure that the tens of millions of dollars spent on misleading ads do not drown out your voice. Because no matter how many ads they run – no matter how many elections they try to buy – the power to determine the fate of this country doesn’t lie in their hands. It lies in yours. It’s up to all of us to defend that most basic American principle of a government of, by, and for the people. What’s at stake is not just an election. It’s our democracy itself.
This fall, the Senate will have another chance to bring the DISCLOSE Act to a vote. As the New York Times pointed out yesterday, the vote should be a no-brainer for moderate senators like Susan Collins and Olympia Snowe of Maine:
The Citizens United decision, paradoxically, supported greater disclosure of donors, but Senate Republicans have filibustered a bill that would eliminate the secrecy shield. Just one vote is preventing passage. That act is coming back for another Senate vote. The two Republican senators from Maine, Susan Collins and Olympia Snowe, might want to read a recent poll by the Maine Citizens for Clean Elections, which showed that 80 percent of the state’s voters support public disclosure.
In a poll we commissioned in June, 85% of Americans said that corporations already have too much influence over the political process. Voters want information. Will Congress provide it?
Some conservatives are still trying to argue that the Supreme Court is in danger of being overrun by “liberal activists.” But an article in Sunday’s New York Times, entitled “Court Under Roberts Is Most Conservative In Decades,” presented data from political scientists that pretty conclusively showed a conservative, not a liberal, ideology entrenched in the highest court.
One piece of data really stood out to me:
Four of the six most conservative justices of the 44 who have sat on the court since 1937 are serving now: Chief Justice Roberts and Justices Alito, Antonin Scalia and, most conservative of all, Clarence Thomas. (The other two were Chief Justices Burger and Rehnquist.) Justice Anthony M. Kennedy, the swing justice on the current court, is in the top 10.
That’s right: the current “swing” justice is considered one of the ten most conservative judges of the past 70 years. Centrist justices are in some ways even more important than the Court’s ideologues or even chief justices. As the Times article notes, the court’s most extreme shift to the right occurred when Justice O’Connor was replaced with the much more conservative Justice Alito:
By the end of her almost quarter-century on the court, Justice O’Connor was without question the justice who controlled the result in ideologically divided cases. “
On virtually all conceptual and empirical definitions, O’Connor is the court’s center — the median, the key, the critical and the swing justice,” Andrew D. Martin and two colleagues wrote in a study published in 2005 in The North Carolina Law Review shortly before Justice O’Connor’s retirement.
With Justice Alito joining the court’s more conservative wing, Justice Kennedy has now unambiguously taken on the role of the justice at the center of the court, and the ideological daylight between him and Justice O’Connor is a measure of the Roberts court’s shift to the right.
The statistics back up a right wing trend on the Supreme Court that has been hard to ignore. Since Alito joined the Court, it has made startling decision after startling decision, including overturning democratically enacted restrictions on corporate spending in Citizens United v FEC, and defending discrimination against women in the workplace in Ledbetter v Goodyear.
Just one justice can make the difference between democratically enacted campaign finance laws and unlimited corporate spending in elections; between employment discrimination laws that work for employees and those that work for employers; between our democracy holding corporations accountable and corporations owning our democracy.
All of which is why, when we talk about presidents and senators, we have to talk about the Court.