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May 15, 2012 3:50 PM Politicking From the Bench

By Ed Kilgore

I promised a post on Jeffrey Toobin’s reconstruction for the New Yorker of the pre-history and history of the Supreme Court’s 2009 Citizens United decision, which bids fare to cast a very long shadow on U.S. elections for many years to come. But all I really want to do is to convince you to take the time to read it yourself. Yes, it’s very long, and parts of it may be a bit difficult for non-lawyers to navigate. But it really is essential reading, not just in terms of understanding Citizens United, but in grasping the revolutionary potential of the Roberts Court, particularly if its conservative bloc is augmented by a Republican president during the next four to eight years.

So let me whet your appetite with a brief precis of the cast of characters who brought us the Citizens United decision:

* Citizens United co-founder (along with Willie Horton-ad legend Floyd Brown) and longtime president, David Bossie, who first drew national attention as part of a Senate investigation of the trumped-up Whitewater case, and then worked for the notorious crank Dan Burton in a wide-ranging House fishing trip through all things Clintonian, managing to get fired by Burton at the insistence of Newt Gingrich after he got caught doctoring evidence. The “documentary” that was the subject of the entire Citizens United litigation was the fruit of Bossie’s ambition to make a lot of money while continuing his service to the right-wing Cause.

* Citizens United’s original attorney, James Bopp, whose roots were in the anti-choice movement, traditionally bitter opponents of any and all restrictions on campaign financing (as you might expect from people who think their opponents are today’s Nazis, carrying out a new Holocaust). Bopp probably gained his greatest national notoriety as the sponsor of a 2009 RNC resolution to refer to the “other party” as the “Democrat Socialist Party.” It failed, but was most definitely the wave of the immediate future in conservative agitprop.

* Bopp’s successor once the case made it to the Supreme Court, former Solicitor General Ted Olson, the successful attorney in Bush v. Gore, the only recent decision matching Citizens United in its breaktaking audacity and immediate consequences. As Toobin explains, even a seasoned legal warrior like Olson (now probably best known as the Koch Brothers’ attorney) had to be schooled by Chief Justice Roberts in how to reframe what was originally a narrowly focused appeal to a FEC ruling into an opportunity to all but destroy campaign finance laws dating back more than a century.

* Justice Anthony Kennedy, described by Toobin as representing a radical departure from his swing-vote predecessor, the minimalist Sandra Day O’Conner, acting not as a “moderate” but as “an extremist—of varied enthusiasms.” Kennedy wrote a sweeping concurrence aiming at the destruction of campaign finance laws even before the plaintiffs were asking for that action—a concurrence that ultimately became the majority opinion thanks to:

*Chief Justice John Roberts, the central character in Toobin’s tale, who saw the opportunity for a radical decision and carefully led plaintiffs and justices alike to that destination.

Toobin doesn’t make any exact predictions for where Roberts will take “his” Court in the future, but usefully explains the alarming precedent of the Court’s Lochner era, in which corporations were endowed with far more inalienable rights than anyone in their employ via an aggressive substantive due process doctrine that would have made later liberal “activists” blush with embarassment. This is the period when the Court tried and for a while succeeded in thwarting the New Deal, until FDR’s threat to pack the Court led to a strategic surrender (a moment, BTW, viewed by today’s conservative judicial radicals as a sort of black-robed version of Chamberlain at Munich).

Thus, even if campaign finance issues bore you, the Toobin account is a must-read if only for its glimpse of what may come next. I came away convinced that a conservative Court majority as radical as today’s, led by an activist as crafty as Roberts, is entirely capable of overturning the Patient Protection and Affordable Care Act with nary a guilty moment. And perhaps that’s why Jeffrey Toobin was so quick to conclude after the “ObamaCare” oral arguments that this is exactly where they are headed.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

Comments

  • T2 on May 15, 2012 4:08 PM:

    to understand Roberts, and the activist court he operates, you only have to know that the plight of the everyday citizen, which the SC is allegedly created to protect, means nothing to him. He and Alito were put there for one reason - create a conservative, Evangelical government above challenge for the foreseeable future.

  • Anonymous on May 15, 2012 4:28 PM:

    described by Toobin as representing a radical departure from his swing-vote predecessor, the minimalist Sandra Day O’Conner

    Kennedy is not O'Connor's successor--he was apointed back in '87, succeeding Lewis F. Powell. Samuel Alito is O'Connor's successor.

  • kindness on May 15, 2012 4:34 PM:

    Guillotine? Maybe the French weren't completely wrong.

  • James E Powell on May 15, 2012 4:47 PM:

    Even if the intentions of Roberts and his colleagues were as radical as many of us fear, and even if those intentions were laid bare before the public, the public would not care. They sat still, even enjoyed, the radical decision in Bush v. Gore. They remain unaware of the consequences of Citizens United.

    Only a series of accidents, Obama re-elected and maybe another Democrat after him, early deaths or retirements, will change the course. And the public will be, at best, only dimly aware that those events have consequences for the supreme court and the future of our democratic republic.

  • Gummo on May 15, 2012 5:11 PM:

    And the public will be, at best, only dimly aware that those events have consequences for the supreme court and the future of our democratic republic.

    They will be "only dimly aware" because the corporate press has happily reneged on its duties with, of course, no reprisals at all.

  • gdb on May 15, 2012 5:17 PM:

    JEP you are correct in your diagnosis. Wrong in the probable solution. BHO re-elected with a slim or no Senate Dem majority will appoint zilch judges anywhere, much less to SCOTUS. Until a really effective Progessive is elected, US policies and SCOTUS will continue to move rightward. Ironically, the best hope maybe a Mittens win in November followed by Repubs getting the full blame for the resulting economic disaster--- and a truely effective Progressive majorities in the executive and legislative branches in 2016. It's a Hell of a path-- but it may be the best we got.

  • June on May 15, 2012 6:36 PM:

    @gdb: I also agree with James E Powell, but I don't quite follow your logic. Mainly, because a "progressive enough" or "not progressive enough" Democratic president has less to do with appointing the coming makeup of Supreme Court judges than the advancing age of four of them:
    -
    Ginsburg, 79
    Scalia, 76
    Breyer, 74
    Kennedy, 76

    A Romney win, and the retirement and replacement of two of these judges would give frothing-at-the-mouth conservatives a very good chance of completing their "cold civil war" coup. There is no scenario in which a Romney win would be a good thing Supreme Court-wise - if Mitt gets the chance to install more right-wing loons, there's will most likely not be much "Progressive majorities" can come up with that will withstand a Supreme Court assault.

  • JM917 on May 15, 2012 6:40 PM:

    @ gdb:

    If Mittens wins in 2012, along with the GOP holding both houses of Congress, the Repugs--aided and abetted by their Supreme Court and by all the right-wing federal judges that Mittens will appoint and all the hell that Repug governors and state legislators will dish out--will impose so heavy a load of repression on this country that the chances of a progressive backlash in 2016 will be washed out to sea. It won't matter what economic disasters and social upheavals will result from Repug rule. Look for wholesale voter suppression and disfranchisement, endless propaganda demonizing everything progressive, and the iron fist of police rule cracking down on any dissent. The right wing knows that the 2012 election is about their last shot at making history stop dead in its tracks, before long-range demographics begins to tell against it--and it will go all out to enforce its will to power.

    A hell of a path indeed!

    For all his faults, we have to work all-out for Obama's reelection. Maybe his second term won't be more than a holding action; for example, I can well see the Senate (whether the GOP holds a narrow majority or remains a strong minority) blocking any BHO SCOTUS appointments. Probably we will have to wait till 2016 to elect "truly effective Progressive majorities in the exective and legislative branches." But we dare not concede the next four years to Romney and the Tea Party. If we get Romney and the GOP in 2012, we may NEVER be able to get rid of them.

  • Doug on May 15, 2012 9:22 PM:

    So, if I understand our budding political guru correctly, gdb is hoping for a Romney win, so that when the economy tanks, the nation will rise up in righteous (aka progressive) wrath and elect vast majorities of progressives, not only to the House and Senate, but also (Dare I say it? Dare! Dare!) to the PRESIDENCY!
    I only have one question: what the Hell are you on?
    Of all the juvenile and, most definitely, UN-progressive ideas I have EVER heard or read about, this ranks right down there with worst of them.
    The LAST time we suffered such an economic blow-out, we came within an ace of instituting fascism in this country. Don't believe me? Read up on the National Recovery Act and compare THAT to what Signor Mussolini described as the "Corporate State"; ie, fascism. Of course, we didn't rely on castor oil or beatings and the SC eventually ruled most of it un-Constitutional, but still, we tried it. And had the President been anyone other than FDR, I shudder to think what might have happened.
    Should we have another such melt-down, with Republicans in complete control of the Federal government, do you really expect THEM to go quietly when election are held? IF elections are allowed, that is.
    Or, is THAT what you secretly want? Maybe you picture yourself, a la Rambo, all oiled-up and blasting away? If so, I have some advice. It's just two words -
    Psychiatric help.

  • emjayay on May 15, 2012 9:27 PM:

    re gdb: I am totally f-ing sick of the "Obama is just like a Republican, if a real Republican gets in everyone will get what they're about and then a real left wing Democrat will become president."

    No,this is not how it works. I am disappointed in Obama on a large number of issues. However, the amazingly disasterous presidency of George W Bush apparently made little difference. The voting preferences of low information not that bright or knowledgeable people did not change all that much. We do not have a parliamentary system. Voting for the Green Party or Ralph Nader or not voting or whatever is shooting yourself in the foot.

    And no, President Mittens will not get blamed for anything. The economy will continue to stumble back to normalcy. He will take credit for everything positive, even if most of it is based on a stimulus and GM bailout etc. which he was against.

    Obama has appointed relatively progressive people to the supreme court. Nothing could be more important. Adding to the list, Clarence Thomas is going to be 64 next month and is black and overweight. Please God....

  • emjayay on May 15, 2012 9:32 PM:

    Doug: For your emotional equilibrium, do not under any circumstances read anything on the otherwise quite interesting and exemplary AmericaBlog. Particularly the comments.

  • JR on May 15, 2012 11:21 PM:

    @anonymous:

    Kennedy is not O'Connor's successor--he was apointed back in '87, succeeding Lewis F. Powell. Samuel Alito is O'Connor's successor.

    I think you misunderstand: he's saying Kennedy is O'Connor's successor as the swing vote on the Court, not her successor as Associate Justice. It read clear enough to me, and I think the meaning is easily discerned.

  • James E Powell on May 16, 2012 1:18 AM:

    the best hope maybe a Mittens win in November followed by Repubs getting the full blame for the resulting economic disaster

    Anyone who believes this has problems that cannot be solved, given our current understanding of how the brain works.

    Anyone who is tempted to consider this a good idea should reflect that similar arguments were advanced in support of Bush in 2000. The current situation in which we find ourselves, with respect to the supreme court, is a direct result of Bush gaining the White House.

    The people who run and make almost all the money from our economic system are almost all Republicans. What most of us call problems, they call income. The same people also control the press/media. The chances that people who apparently do not blame the Republicans for the current economic situation will blame them for some subsequent economic situation are zero.

  • Ted Frier on May 16, 2012 6:36 AM:

    I realize that I'm stepping right up to the edge of anti-Catholic bigotry here, if not crossing it altogether, but perhaps as a practicing Catholic I am entitled. But I have always seen the efforts of the Catholic bishops to regain political power as is evident in the birth control and anti-nun controversies, and the rulings of a five-member conservative Catholic Supreme Court majority resurrecting Gilded Age plutocracy, as being part of the same general anti-democratic trend to empower paternalistic hierarchy at the expense of popular sovereignty, whether there is any conscious ideological collaboration or not. We've seen lots of analysis that connects the Roberts Court with those pre-New Deal Courts that prioritized property rights over civil rights, but few that link the direction of the Court's rulings to right wing Catholic paternalism.

  • bob h on May 16, 2012 6:57 AM:

    The Chief Justice of the US is explicitly accused by Toobin of acting from naked political calculation, of being corrupt and dishonest. That's pretty amazing.

  • boatboy_srq on May 16, 2012 9:30 AM:

    @bob h:

    That's pretty amazing. Amazing that Roberts is a shameless Reichwing political hack (really?), or amazing that at last somebody (even if it's Toobin) has the cojones to say so in print and the clout to get it published?

  • Rick B on May 16, 2012 2:13 PM:

    @Ted Frier

    I very much agree with you. I don't consider it anti-Catholic bigotry to object to having the Catholic bishops, appointed to further the cause of taking the society back to the rural religious form in which the religious hierarchy had quasi-governmental powers, to be mistaken.

    The centralized Catholic hierarchy is not the Catholic religion. It is self-selected by religious extremists who are still fighting against modernism, the industrial revolution, and the loss of political power by the Catholic institution. Their extreme anti-social defensiveness is clearly demonstrated by the way those bishops in the hierarchy have failed to protect children and others from the sexual predators in their ranks. Is there any better proof that religion itself creates and encourages bad government than the positions the conservative Catholic bishops have been taking?

    It's not anti-religious bigotry to recognize that religious institutions protect bad government institutions as a method of protecting themselves. The first Amendment's separation of church and state remains a major step forward in political and religious history.