Nonprofit, independent journalism. Supported by readers.


How the Supreme Court has come to play a policymaking role

Two landmark decisions — Roe v. Wade and Citizens United v. Federal Election Commission — illustrate the lack of real judicial modesty.

MinnPost illustration by Jaime Anderson

One in a series of articles. You can read the whole series here.

So the authority of the U.S. Supreme Court to strike down laws is not explicitly enumerated in the Constitution, was established by the court itself in a case filled with conflicts of interest for the court itself, and its absolute nature was questioned by the likes of Thomas Jefferson, Andrew Jackson and Abraham Lincoln. So what? I’m not under any illusion that it is going away and am not arguing that our system would be better without it, although there are times when I have my doubts.

Officially, U.S. Supreme Court justices (and especially nominees to the court during their confirmation hearings) subscribe to a doctrine of “judicial modesty,” which suggests that — in a democracy — the least democratic branch should overrule the policy preferences of the more democratic branches only when the conflict between a law and the Constitution is strong and clear and never when the justices simply have a different policy preference from the legislators.

Trouble is, no one can define or enforce those limits other than the justices themselves. When they impose their policy preferences in the guise of defending the Constitution – or even when they are perceived to be doing so – the credibility of the whole system takes a hit.

Article continues after advertisement

In reality, compared to Supreme Courts in other democracies around the world, ours is more powerful than most, perhaps more than any. There are several reasons for this. University of Chicago Law Professor Tom Ginsburg, who directs a project comparing every Constitution adopted since 1787, notes a couple of the big reasons. In an interview, Ginsburg said that the U.S. Constitution is way below average in length, covers many fewer topics than typical more recent constitution do, and therefore leaves more scope for Supreme Court justices to fill in the blanks on the many new areas that have arisen since 1787. Our  Constitution is “venerated as sacred,” Ginsburg said, which is a barrier to any proposal to change it, and, in addition, the requirements for amending it are more onerous.

“My argument is that all of these factors perversely empower the Supreme Court and makes the court much more likely to engage in public policy” than high courts of other nations, Ginsburg said.

Two landmark decisions that are part of our everyday politics illustrate the lack of real judicial modesty and demonstrate how the court has come to play a policymaking role that is supposed to be reserved for elected officials. The cases are Roe v. Wade and Citizens United v. Federal Election Commission.

Roe v. Wade

In Roe, the court discovered a constitutional right to abortion (even though the word “abortion” certainly doesn’t appear in the Constitution). The majority found this right to be a part of a general right to privacy guaranteed by the Constitution (even though the word “privacy” also appears nowhere in the Constitution). There are some rights guaranteed by the Constitution that have something to do with privacy, like the Fourth Amendment right to be free in your home from warrantless searches by the authorities. And the court had previously discovered other unenumerated privacy- (and contraception-) related rights that a majority of justices ruled were guaranteed by the Constitution.

I recognize that most liberals and many people reading this article revere the Roe decision, which is also part of the point.

Before Roe, the abortion question was left to the states. Some allowed the procedure, most banned it. To think that women should have a right to choose for themselves whether to have an abortion is an utterly defensible belief and one I share. To think that the authors and/or ratifiers of the Bill of Rights had abortion in mind when they described the basic rights that must be beyond encroachment by the government would be ludicrous. In fact, no one seriously asserts that.

Imperfect Union: The Constitutional roots of the mess we're inIf such a policy is to become the law of the land, or of individual states, it would certainly be best if it came from the elected branches, which are assigned the task of making laws and policies.

In Roe, the majority not only amended the Bill of Rights to insert a new right that the original authors hadn’t intended, but went further into what one might call a legislative mode by breaking a pregnancy into trimesters and specifying different levels of a woman’s discretion over the abortion choice during each trimester.

To strict constructionists, and especially to abortion opponents, Roe became and has remained the leading symbol of “legislating from the bench.” It was a statement from the court’s majority that they needed little basis in the Constitution to create rights that they felt should be guaranteed. In an earlier 1958 ruling, the court declared that the meaning of language in the Constitution was not frozen in time according to what it meant when it was written but “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

Article continues after advertisement

The Roe ruling has been central to public perceptions of the Supreme Court ever since. For example, Roe remains the sub rosa litmus test around all appointments to the court, which is the subject of the next installment of this series. For purposes of this installment, suffice it to say that in Roe, the court appointed itself the key body in charge of legislating and regulating in the area of abortion.

And two years ago, the court did the same in the area of campaign finance.

Citizens United v. Federal Election Commission

Not long after the Roe decision (January, 1973), the Watergate scandal culminated in the resignation of President Richard Nixon. The scandal, among other things, alerted the country to the cesspool of secret money and contributions-for-influence that had engulfed the Nixon reelection campaign of 1972.

In two waves, Congress responded to shelter the system from the threat of influence-buying-via-campaign-finance: In 1974, with a set of amendments to the Federal Elections Commission Act; in 2002, with the Bipartisan Campaign Reform Act (usually known as McCain-Feingold after the senators who sponsored it).

Taken together, the laws set out key principles that Congress believed would strike an appropriate (and constitutional) balance between the importance of free speech in an election context, and the need to reduce the corrupting influence of big money over politics. The principles included:

  • Allowing individuals to give unlimited contributions was an invitation to corruption, so each individual should be limited to a $1,000 contribution to a candidate per campaign cycle.
  • Contributions should be disclosed promptly.
  • Candidates should be required to take responsibility for the ads run on their behalf by including a message, in the candidate’s own voice, that he or she “approved this message.”
  • Neither corporations nor labor unions should be allowed to spend funds directly from their treasuries on electioneering messages (basically ads that mention a candidate by name).
  • For presidential elections, a voluntary system of public finance should be created. A candidate who agreed to limit the amount of money he accepted from private parties would be eligible for federal matching funds so that theoretically, a candidate who didn’t sell out to the highest bidder might still be able to run a competitive race.

In two rulings (Buckley v. Valeo in 1974 and Citizens United in 2010), the Supreme Court struck down portions of both acts, and either eliminated or undermined the effect of each of those five features on the grounds that they violated the First Amendment guarantee of freedom of speech.

What we now have is a ridiculous system that is more loophole than law. But the main point for our purposes is that the ridiculous system is the creation of the Supreme Court, which used the power of judicial review to expropriate from Congress the role of lawmaker in the area of campaign finance. Like the system of abortion regulation since Roe, the system of campaign finance we have is the Supreme Court’s system.

Money = speech

The court ruled in Buckley that an individual can spend an unlimited amount of his own money to promote himself for election. Allowing a candidate to say whatever he might choose to say is not enough freedom of speech, the court ruled, if he or she cannot spend an unlimited amount to broadcast his message. The political parties soon recognized the advantage of nominating very wealthy candidates who can “self-fund” their campaigns, because that frees their other donors up to contribute money to other races. As a result, the Senate is now more of a Millionaires Club than ever. Is that good for democracy? The court doesn’t say, only that the First Amendment requires it.

Corporate personhood

The court ruled in Citizens United — again on First Amendment grounds — that corporations and unions can spend directly from their treasuries to influence elections. Previous Supreme Courts had ruled that a corporation is a kind of person and has some (not necessarily all) of the constitutional rights of “natural persons,” namely individual U.S. citizens. Citizens United simply applied this principle to the right of corporations to express themselves politically. Is this good for democracy? Does it help reduce the potential corruption of politics by money? Seems unlikely. The court doesn’t say.

Citizens United actually implied that disclosure requirements were constitutional, so long as they didn’t create too much of a burden on the donor corporations to comply. This issue is still in play in multiple cases working their way through the appellate courts. Many donors, especially the corporate ones, don’t want their contributions disclosed because they might get blowback from customers who don’t like the corporation’s politics. The organizations receiving the contributions have been challenging the disclosure requirements as unduly burdensome. The most recent appellate rulings have favored non-disclosure. At the moment, the idea that full, prompt, clear disclosure of the sources of political contributions is an important part of the campaign finance scheme is in full retreat.

How the Supreme Court has come to play a policymaking role
MinnPost illustration by Jaime Anderson

Of course, the organizations that we call SuperPACs have arisen to exploit the many loopholes that the court left open. Because of the way SuperPACs are organized, individuals (including those who are not themselves candidates) and corporations (giving directly from their treasuries and without needing the approval of their shareholders) can give unlimited amounts to SuperPACs.

Article continues after advertisement

Unlimited. This is how we get a figure like casino magnate Sheldon Adelson (net worth: $20 billion; ranking on Forbes list of richest Americans: seventh), who gave $10 million to try to make Newt Gingrich the Republican nominee and who was reported ready and willing to spend $100 million to make Mitt Romney president. This is very good for owners of TV stations in swing states who sell advertising during campaign season. Is it good for democracy? Congress thought it wasn’t and tried to make this level of individual giving impossible. The Supreme Court made it possible on free speech grounds. When Adelson gives those millions to organizations that run ads that he hasn’t written, hasn’t even reviewed, is he really speaking?

SuperPACs have now become so active that they spend more money on political advertising than the candidates’ own campaign committees do. As a result, although a candidate still must take responsibility (“I approve this message”) for the ads run by his own campaign committee, more and more of the ads are run by SuperPACs and other groups that are technically not associated with the candidates they support. The SuperPACs go by generic names that tell you nothing about who is behind the ad, names like “American Crossroads” or “American Bridge” or “PrioritiesUSA” or “Restore Our future” or “Winning Our Future” or “Make Us Great Again”  or “Red, White and Blue.” SuperPAC ads generally carry the Orwellian disclaimer: “Not authorized by any candidate or candidate’s committee.”

An informal system seems to have emerged in which the candidates run the nicer ads and the SuperPACs run the nastier ones with the heavier doses of half-truths. When the candidate is asked about the nasty ads and the half truths, he can (and often does) say that he hasn’t even seen the ad in question, and takes no responsibility for it. The legal requirement that candidates stand by their ads has been substantially defeated. Is this good for democracy?

In that I-take-no-responsibility-for-it moment, the candidate will also often mention that he is in fact prohibited by law from having anything to do with the ads run by SuperPACs that support him nor anything to do with the SuperPAC itself.

Independent and uncoordinated

That’s true. Justice Anthony Kennedy, who wrote the majority opinion in Citizens United, recognized that unlimited donations could lead to the kind of corruption associated with Watergate. So he insisted in his ruling that organizations that are not working directly for candidates must be “independent” and cannot “coordinate” their activities with the candidates’ committees.

The idea that SuperPACs are independent of and uncoordinated with the candidates — except in the most meaningless technical sense necessary to comply with Justice Kennedy’s requirement — is laughable. PrioritiesUSA, the leading pro-Obama SuperPAC in the election cycle that just ended, was founded and run by two former officials of the Obama White House. One of them, Bill Burton, was the chief spokesman for the 2008 Obama campaign and then Obama’s deputy press secretary for most of his term before leaving to start PrioritiesUSA. He hardly needed daily telephone contact with the 2012 Obama reelection campaign to tailor PrioritiesUSA’s advertising strategy to fit the needs of the overall Obama reelection effort.

The most active pro-Romney SuperPAC was Restore Our Future. Its board of directors included Charles Spies, who served as general counsel of Romney’s 2008 presidential campaign; Carl Forti, who was political director of Romney’s 2008 campaign, and Larry McCarthy, a media adviser to Romney in ‘08. Restore Our Future got the largest portion of its funds from Wall Street interests. One group of Romney supporters, to ensure their anonymity, actually created a dummy LLC (limited liability corporation) in March of 2011, donated $1 million via the corporation to Restore Our Future in April, then dissolved the corporation in July.

The last of the five measures I laid out above that Congress enacted to try to control donors’ power over politics was public matching funds. Technically, presidential candidates still have the ability to get public funds for their campaigns, if they are willing to abide by limits on how much they will raise by other means. But in the post-Citizens United age, it may never again be practical for a campaign to accept the limits, knowing that their opponent’s campaign can raise unimaginable amounts. This year, for the first time, both presidential campaigns rejected the public funds in order to avoid the limits that come with them.

So, to review

The Constitution gave us the First Amendment, which guarantees freedom of expression. It put Congress in charge of making laws, the president in charge of enforcing them and the Supreme Court in charge of deciding cases that arise under them, including cases in which the laws may conflict with the constitutional guarantees.

Article continues after advertisement

Freedom of expression is not absolute. Fire-in-a-crowded theater and all that. Personally, I don’t believe that a society in which there are reasonable limits on the amount an individual or a corporation can give to carpet bomb the airwaves with 30-second attack ads in the last weeks of an election campaign would necessarily be a society without freedom of expression. The Supreme Court has, in fact, ruled that Congress is constitutionally empowered to take steps to protect the political process from corruption, including corruption by money. Nonetheless, the Supreme Court has vitiated every measure the Congress has adopted to promote that objective.

The court divided 5-4 on the Citizens United case.

In a long dissent, Justice John Paul Stevens wrote:

A democracy cannot function effectively when its constituent members believe laws are being bought and sold… At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.