latimes.com
A partisan Supreme
Court
The decision on
campaign finance points to something
more troubling than
unlimited corporate contributions.
Tim Rutten, Opinion
from the Web, January 23, 2010
This week's Supreme Court decision
granting corporations the right to spend unrestricted amounts of money
supporting or opposing candidates in federal elections is so strained in its
reasoning and so removed from the realities of American life that it would be
grotesquely comedic, were its implications not so dire.
We're all familiar, of course, with the disenfranchisement of corporate America.
It's common knowledge that the interests of big business are routinely ignored
at every level of society, and that the deprivation of rights suffered by those
unfortunates who populate its executive suites is a continuing affront to the
national conscience. That, at least, was the suggestion of the strident
tone taken by Justice Anthony M. Kennedy. "If the 1st Amendment has any
force," he wrote, "it prohibits Congress from fining or jailing citizens or
associations of citizens for simply engaging in political speech."
You would think that the federal prisons were overflowing with corporate martyrs
to freedom of expression. This is reasoning ludicrous on its face and
radical in its dismissal of judicial decisions stretching back to Theodore
Roosevelt's presidency. The notion that corporate rights and individual
rights -- particularly those recognized by the 1st Amendment -- are congruent is
absurd. Do corporations have a right to freedom of religion, or just to
those liberties that advance commercial interests?
As Justice John Paul Stevens wrote in dissent: "If taken seriously, our
colleagues' assumption that the identity of a speaker has no relevance to the
government's ability to regulate political speech would lead to some remarkable
conclusions. Such an assumption would have accorded the propaganda
broadcasts to our troops by 'Tokyo Rose' during World War II the same protection
as speech by Allied commanders. More pertinently, it would appear to
afford the same protection to multinational corporations controlled by
foreigners as to individual Americans."
That's hardly the end of this decision's implications. Over time, it's
bound to provide the rationale for overturning state and local electoral
regulations based on federal law -- as those in Los Angeles are -- and will
further undermine the influence of the parties at a time when U.S. politics seem
increasingly chaotic.
That's true because, though corporate contributions to the parties continue to
be regulated, expenditures made outside the parties on behalf of candidates now
are unlimited. The predictable effect on parties is particularly odd from
this court, given that one of the most distressing things about this decision --
considered in a sequence stretching back to Bush vs. Gore -- is that it
demonstrates that this is a partisan court, willing to hand down sweeping
decisions that ignore decades of jurisprudence based on five Republican votes.
That was not true of the activist court over which Chief Justice Earl Warren
presided. At the time he was sworn in, Warren was the only member of the
court appointed by a Republican president. Still, he inherited a group of
justices deeply split over the overriding question of the day -- segregation --
and fashioned a unanimous rejection of legalized racial separation in the
landmark Brown vs. Board of Education decision. As The Times' Jim
Newton -- Warren's biographer (and also my editor) -- has pointed out, "Before
Fred Vinson, Warren's predecessor, died, the court was deeply split over
Brown. At least three justices (Tom Clark, Stanley Reed and Vinson)
were inclined to uphold Plessy vs. Ferguson in defense of segregation,
and two others (Felix Frankfurter and Robert Jackson) were stymied by the
question of how to overturn such a long-standing precedent. Vinson's
death, which Frankfurter referred to as his first solid evidence of the
existence of God, cleared the way for that impasse to be broken. Thus
Warren achieved a unanimity that elevated the opinion above partisan or
sectional politics." Can that be said of any major decision handed down by
Chief Justice John G. Roberts Jr.'s court?
That nonpartisan character survived throughout Warren's tenure and that of his
successor, the Republican Warren E. Burger. Two other landmark decisions
of that period -- Griswold vs. Connecticut, which recognized a
constitutional right to privacy, and Roe vs. Wade -- were decided by 7-2
majorities. In the former, one of the dissenters, Hugo Black, was a
Democrat; the other, Potter Stewart, a Republican. In the latter, one of
the minority justices, Byron R. White, was a Democrat, and the other, William H.
Rehnquist, a Republican.
Our current ability to predict Supreme Court decisions by weighing the issues
against the two parties' programs is worse than melancholy. It marks a new
low in our nation's descent into corrosive partisanship.
timothy.rutten@latimes.com
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