Supreme Court

by Jeremy Leaming

The Montana Supreme Court late last year pushed back against the U.S. Supreme Court’s highly unpopular and wobbly reasoned opinion in Citizens United v. FEC, when it upheld the state’s longtime regulation of corporate financing of elections.

Not surprisingly a cabal of corporations quickly asked the high court to overturn the Montana Supreme Court’s ruling in Western Tradition Partnership, Inc. v. State of Montana, which concluded the Roberts Court’s Citizens United opinion was not going to stand in the state’s way of ensuring that corporations do not overtake its elections.

Writing for the majority upholding the Montana Corrupt Practices Act, Chief Justice Mike McGrath stated “when in the last 99 years did Montana lose the power or interest sufficient to support the statute, if it ever did. If the statute has worked to preserve a degree of political and social autonomy is the State required to throw away its protections because shadowy backers of WTP [Western Tradition Partnership] seek to promote their interests? Does a state have to repeal or invalidate its murder prohibition if the homicide rate declines? We think not.”

Even the dissenting justice in the Montana case blasted the Supreme Court’s “corporate personhood” reasoning of Citizens United, writing, “Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people – human beings – to share fundamental, natural rights with soulless creations of government.” 

Then earlier this week came Jeffrey Toobin’s extensive piece for The New Yorker revealing the machinations of the Roberts Court to tear down the tradition of campaign finance regulation, and in the process provide yet another victory for corporate America. As Toobin writes Chief Justice John Roberts craftily took a case with a narrow question before the justices and expanded it allowing the Court’s right-wing bloc to overturn a long tradition of regulating corporate financing of campaigns. The outcome in Citizens United concluded that corporate entities have First Amendment rights to spend whatever they want on electioneering, and in the process ushered in the era of the “super PAC.”

By Justin Crowe, an assistant professor of political science at Williams College

Gee, for a one-time constitutional law professor, Barack Obama sure does seem to harbor a lot of hostility for judges. (And, judging [a legal pun — ha!] by Samuel Alito and Jerry Smith, they for him.) Doesn’t he? First there was the broadside at his 2011 State of the Union criticizing the Court's decision in Citizens United, prompting Alito's now-infamous “not true” moment. Next there was his claim that the Court wouldn't dare strike down the Affordable Care Act as unconstitutional, prompting Smith’s surely soon-to-be-infamous order to a DOJ lawyer for a memo outlining the Justice Department’s views on judicial review. For all his claims about “due deference to the separation of powers” and supposed belief in the importance of an independent judiciary to protect the rights of citizens and the rule of law, it appears Obama only likes the Court — only likes the judiciary more broadly — when it agrees with him. And surely that sort of “anti-judgeite” perspective is a terrible one for American constitutionalism and American democracy. Right?

Well, yes — sort of ... and no, not at all. In a sense, Obama only really values judicial power to the extent that its exercise comports with his policy preferences. But, at base, who doesn’t? Presidents always want — have always wanted — courts to bend to their will. And politicians generally always try — have always tried — to shape courts to serve their interests. So what? Does this really “politicize” the judiciary in some needless, inappropriate, and harmful way? Does it really demonstrate that judicial power — that judicial independence, that law itself — is somehow perpetually under political siege? Not even remotely.

As I attempt to show in my recent book, Building the Judiciary: Law, Courts, and the Politics of Institutional Development, any claims that judicial power — that judicial autonomy or judicial independence — has ever been, in any meaningful sense, beyond the sphere of politics are fundamentally incorrect.