Oyez Oyez, The Supreme Lawgivers Have Spoken

Once again the Supreme Court has ruled and there is shock and awe. The latest “surprise” is that the Roberts Court has extended its campaign finance rulings to increase the ways in which money can buy elections. Since money is speech and speech is free, we have no choice but to be ruled by Oligarchs. Like in Russia. God Bless America.

Yet how can anyone be surprised? There is now a long list of cases in which Roberts’ Raiders have overturned, limited or ignored earlier precedents. Clearly this is not a conservative court since respect for precedent is the bedrock of conservative jurisprudence. All of the present conservative justices vowed a deep love for the principle when trying to get on the court, then promptly forgot all about it.

Thus, the Roberts Court has shredded precedent in a series of campaign finance cases, have overturned longstanding protections in voting rights cases, discrimination cases covering hiring, workplace rights and education, and made it harder for people to seek redress when wronged by government or corporations.

The reason most often given for dumping past precedent is “circumstances have changed.” Apparently in the America where the justices live, racial and gender discrimination is a thing of the past, corporations never misbehave, big money no longer tires to control elections or thwart the will of the people and all is for the best in the best of all possible worlds. Or will be when they get through returning us to the days of the McReynolds Court, or possible the Taney Court.

The Roberts Court has made a habit of doing what Scalia and other conservative icons have accused liberals of doing. It has made new law and ignored the intent of the Founders. In the campaign finance cases it has said you can only restrict campaign giving to prevent corruption and has defined corruption narrowly to mean only a quid pro quo. That is, a bribe. I give you money, you vote my way.

But there is no need for the transaction to be so crude. When the Koch brothers or Sheldon Adelson give millions for campaign media does anyone doubt the beneficiaries know what they are supposed to do in return? Lower taxes on the prosperous and lightly regulate casinos and polluting industries, for instance. At the minimum the dough earns the donors access to the donees. Good luck getting the same privileged treatment if you’re a regular American.

Prof. Lawrence Lessig filed an amicus brief in the most recent campaign finance case specifically refuting the historical justification for this narrow interpretation. He demonstrated that of 325 references to corruption by the Founders only six defined corruption so narrowly. More commonly corruption was taken to man “improper dependence” by public officials or office seekers on others – as in the cases above. Money perhaps should not be equated to speech, but it sure does talk. And pols listen.

No less a figure than James Madison, Father of the Constitution, said in Federalist 52 and 57 that at least one branch of the government, the legislature, was designed to be “dependent on the people alone” and not “the rich more than the poor.” Scalia, Alito, Thomas, Roberts and Kennedy must have missed class the day that was covered.

But parsing these endless Roberts’ revisions of constitutional precedent and history or debating political philosophy is pointless. The Court and its acolytes are not amenable to reason, legal or otherwise. They are the Supreme Law of the Land. Those terrified of what they will do next would do well to remember the valuable lesson taught by an earlier Supreme Court Justice, William Brennan.

Each term Brennan had a get-to-know-you meeting with that year’s crop of law clerks and asked them a simple question: “What is the most important principle of constitutional jurisprudence?“ And the eager beaver young lawyers competed to shine in the eyes of the great man. “Separation of powers?” “Judicial review?” “Stare decisis?” (That’s precedent, to you.)

To all of which Brennan would shake his head ‘no’ and then finally hold up one hand with the fingers spread. The only principle that really mattered, he said, was The Rule of Five. With five votes, you can do what you want on the court. Without five votes, you can’t do anything.

If you don’t like what this court is doing, the only thing you can do about it is elect presidents who will appoint judges who will rule otherwise. Which is why the rulings by the Roberts Court on campaign finance and voting rights are especially sinister. Their effect is to stack the deck so as to prevent the election of anyone who doesn’t share their views and agenda. Not exactly what Madison had in mind.

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