The Alito Brouhaha

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Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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  1. Avatar Michael Drew
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    says:

    Meaning that none of the justices should attend, or just that they should stay away if they don’t think they can fix their facial expressions no matter what the president says?Report

    • Avatar Mark Thompson in reply to Michael Drew
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      I don’t see much point in the SCOTUS Justices ever attending the State of the Union, given its inherently political and partisan nature. I think this is especially true nowadays when the courts have become so politicized in our national rhetoric. Even by attending and sitting there stone-faced, the judges are conceding that they are every bit as much a political branch as the other two.Report

      • Avatar Michael Drew in reply to Mark Thompson
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        says:

        And they are.Report

        • Avatar Kyle in reply to Michael Drew
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          says:

          Meh, even if they are political – they certainly aren’t as political.Report

        • Avatar Mark Thompson in reply to Michael Drew
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          Not as political as one might think, although I concede that they are hardly immune from politics. Not every decision is 5-4 (tough cases) or 9-0 (easy cases), and even where decisions are 5-4, the makeup of the majority changes more often than people perceive – in other words, it’s not always Kennedy, Scalia, Roberts, Thomas, Alito vs. Stevens, Breyer, Ginsburg, and Souter/Sotomayor. Certainly, that’s true more often than not, but it’s not even close to the level of polarization you see in, say, Congress. This suggests the differences on the Court are much more a function of individual judging philosophies than of partisan loyalty.

          See this article, and click on the link titled “voting with the majority,” and you’ll get the picture.
          http://www.nytimes.com/2009/07/01/us/01scotus.html?_r=1&pagewanted=2Report

          • Avatar Michael Drew in reply to Mark Thompson
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            Why would consistent uniform coalitions on decisions be the primary indicator for confirmation or falsification of the thesis that the Supremes are political and that theirs is a political institution? No one argues this would eliminate their individual agency — and in any case why would politics act uniformly in every case on every justice according to a simple binary legal-ideological scheme?

            The argument is simply that given the power they wield over questions that are fundamental political ones in our society, and given that the process that determines the Court’s composition are, and given that each individual on the Court is a flesh-and-blood American citizen and in many cases regularly express political opinions outside the context of proceedings, why would we even credit the notion that the high court is not apolitical institution. Too many of the questions that get decided there have simply too broad a scope of consequences on the country for us to think anything else.

            I don’t claim the entire federal judiciary is politicized, thank goodness. In many cases we certainly see the influence of judges’ political views, but broadly speaking, the law in lower courts as far as I can see is applied clearly and without the influence of politics or ideology. But the Supreme Court in my view is just obviously a different question altogether. (Note that asserting this fact isn’t equivalent to questioning their impartiality — they hold these beliefs earnestly and bring them honestly to the table in evaluating cases, and that is aperfectly appropriate thing. Note also that pointing out that these emperors have very political clothes on in no way degrades the independence of the judiciary — it’s better that we understand fully what the judiciary is and isn’t, so that we value all the more their independence. If we insist that independent means apolitical, then we are really failing to understand what is important about having an independent judiciary in the fist place.)

            So I say let them attend the SOTU and hoot-n-holler if they want to, or remain stonefaced in hopes of maintaining a pretense that they are apolitical — just so long as no one buys into that pretense.Report

  2. Avatar Scott
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    says:

    Obama should have showed more class and not disrespected the Justices. It was a cheap ploy on Obama’s part to score political points.Report

  3. Avatar Jaybird
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    I found it appalling how Justice so-and-so kept rubbing his nose. It’s like he was sending a dog-whistle to his wingnut friends!

    (wipe) “I’M GOING TO OVERTURN THAT!!”
    (wipe) “I’M GOING TO OVERTURN THAT!!!!!”
    (reaches into jacket, removes handkerchief, blows nose, returns handkerchief) “I AM GOING TO OVERTURN THAT AND THEN CENSURE YOU!!!!!”Report

  4. Avatar Tim Kowal
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    says:

    I’m not sure what it means to say that it was “fair” for Obama to do such-and-such during a speech. Though I suppose if you take Mark Steyn’s view that for the President to engage in taunting the other branches of government is a regressed form of monarchical theater, you’d have to conclude that it was unfair, since the other branches aren’t allowed to pipe up and tell him to stuff it. Indeed, they’re apparently not even allowed to shake their heads or mutter their disagreements under their breath. The real question, though, is whether the President’s speech was tasteful, dignified, presidential. And with the dig at the SCOTUS and the schoolyard taunting on Obamacare (“if anyone from either party has a better approach . . . let me know. Let me know. Let me know. I’m eager to see it”), his speech was not those things.Report

  5. Avatar Bo
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    says:

    Is there really anyone that still believes the supreme court is politically independent? It’s 4 right-leaning partisans, 4 left-leaning partisans and one squish. Whenever we have one of these controversial 5-4 decisions (Bush v. Gore, Kelo, Citizens United, Lawrence, etc.), the justices never line up on clear legal lines, like consistently supporting ‘stare decisis’ or not, or expansive vs. restrictive readings of rights, or whatever; they consistently line up on partisan lines and then choose among the legal arguments that support that partisan decision. Now, that O’Connor has retired, there is exactly one person left on the court who has any ability to surprise in this regards. If the court wanted to appear less politically beholden, they should probably consider achieving that through their work rather than what events they attend.Report

    • Avatar Mark Thompson in reply to Bo
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      Some of that is of course due to legitimate ideological/philosophical differences, but yeah, on the whole you’re right. The other thing that would need to happen is for politicians to stop treating the Court as an ideological litmus test.Report

    • Avatar JohnR in reply to Bo
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      Doggone it, Bo, you said it better and more clearly than I was going to (if not always exactly along the same lines)!
      The point is, that the Supreme Court is now, and has been for some long time, extremely politically dependent. The hope always is that the justices will be open to argument and have concern for the nation in ways that let them rise above ideology-based decisions. I’m afraid that we now have too many ideologues on the court to allow this to happen. The point is not necessarily the decisions in any particular case, but also which cases get heard. As for the decision in question, since I’m not a lawyer, I have undoubtedly missed something important, but why should corporations be granted the privileges of citizens, but none of the responsibilities? Furthermore, if the ‘free speech’ rules apply because corporations are made up of citizens, isn’t this the equivalent of the loudly promulgated “double taxation” argument? I must have missed something, because if I have this accurately, the decision suggests that corporate employees get twice as much free speech as those of us lesser mortals.Report

      • Avatar Mark Thompson in reply to JohnR
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        One need not be a citizen to have the right to free speech. The First Amendment certainly protects the right of a foreigner to come to the US and protest. One also has a right to speak as part of an association – otherwise, there would be no such thing as freedom of association, which has long been held to be implicit in the First Amendment. It is not that corporations have an independent right to free speech, it’s that their shareholders or, in the case of the ACLU – which, importantly, is also considered a “corporation” – their contributors and members have a right to speak as an association. The issue is whether there is a compelling government reason for restricting their ability to do so within the period before an election.Report

      • Avatar Jaybird in reply to JohnR
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        Is there a reason I shouldn’t read “ideologues” as “people who disagree with me”?

        Is there a reason I shouldn’t read “open to argument and have concern for the nation” as “judges who agree with me”?

        Because if I were to write that exact same sentence, I’d finish with something like “and that’s why we need nine Clarence Thomases”… I’m guessing that you’d prefer more Souters.

        Am I wrong in that reading?Report

    • Avatar Art Deco in reply to Bo
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      Rubbish. The principal task of judicial review is to rule on supposed conflicts between statutory law and (superordinate) constitutional law. Unwarrented (indeed obscene) instances of the superimposition of the preferences of the appellate judiciary (or, perhaps more precisely, the preferences of the callow youths they employ as clerks) and the frustration of democratic choice are the work of the sort of wretches who gave you Roe v. Wade and have given you repeat performances of litigation over California matrimonial law. Mr. Justice Thomas has nothing to do with that.Report

      • Avatar Dave in reply to Art Deco
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        Rubbish. The principal task of judicial review is to rule on supposed conflicts between statutory law and (superordinate) constitutional law. Unwarrented (indeed obscene) instances of the superimposition of the preferences of the appellate judiciary (or, perhaps more precisely, the preferences of the callow youths they employ as clerks) and the frustration of democratic choice are the work of the sort of wretches who gave you Roe v. Wade and have given you repeat performances of litigation over California matrimonial law. Mr. Justice Thomas has nothing to do with that.

        So when is it acceptable for judges to overturn statutes? You post gives homage to the role of judicial review but then you go off ranting about decisions you don’t like that arose from a process you implied was legitimate.

        Just curious.Report

        • Avatar Art Deco in reply to Dave
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          Very seldom. There has to be a clear and necessary conflict between the constitutional language and the statutory language. Legislative power is housed in…elected legislatures.

          One phrase in the 14th Amendment, which on the face of it appears addressed at executive authority, has been used to annul all sorts of legislation the sort of bourgeois who make up the appellate judiciary do not care for.

          With regard to Roe v. Wade, there is no constitutional language that would justify that sort of usurpation of legislative discretion. Ditto Goodrich v. Massachusetts, in which an appellate court declared that an organic law composed in 1784 required county clerks to issue a marriage license to a pair of broads. The only way these decisions could be justified is if one declares legal language so indeterminate that there is no intelligible law.

          As for the initial complaint, when the federal Supreme Court does something along the lines of declaring all state health and safety statutes null-and-void as being incongruent with freedom of contract, I will be concerned about the unicorn of ‘conservative judicial activism’.Report

          • Avatar Mark Thompson in reply to Art Deco
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            I am prepared to concede that much of the notion of substantive due process is an overreading of the 14th Amendment. However, I would think it fair to assume that reinstating the privileges and immunities clause, which was effectively (and outrageously, IMHO) read out of the 14th Amendment in the Slaughterhouse cases, would do virtually all of the work that is done by substantive due process. This is of course to say nothing about the 9th Amendment….Report

            • Avatar Art Deco in reply to Mark Thompson
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              I was referring to the equal protection clause.

              On the face of it, the privileges and immunities clause appears to apply the Bill of Rights and scattered provisions of the main body of the document (about habeas corpus, &c.) to state government and its creatures. Not my trade, though.

              I think there is almost no case law which makes reference to the 9th Amendment, which would appear to refer to extant immunities incorporated into common law and colonial charters. I doubt you are going to squeeze the right to an abortion or the right to marriage license for miscellaneous agglomerations of humanity out of that.

              Robert Bork has it that the institutional culture of the appellate judiciary, the Bar Association, and the legal professoriate is such that judicial review is no longer reconcilable with democratic practice. He is right.Report

    • Avatar Kyle in reply to Bo
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      I mostly agree. I mean Bush v. Gore was a pretty terrible decision though I suspect not because everyone was in their camp for a President, but because people genuinely thought the other guy was trying to game the system to win. Which, if anything was a victory for cynicism more than it was for President Bush.

      That said, the relevant question in many of these cases is whether the government has a compelling interest to do whatever it’s being challenged on and since that isn’t an expressly constitutional argument, I don’t think the influence of political viewpoints is evidence of political dependency.

      I do think as well there’s a fairly large degree of cum hoc ergo propter hoc going on here. I don’t think they land on 5-4 lines because they are partisans but because their judicial philosophies led them to the seats they hold now. It’s not quite fair to call Justice Kennedy a squish. In Citizens he didn’t wake up on the Republican side of the bed, he’s long held the view of campaign finance restrictions as an impermissible infringement. I think if the judges were as partisan as they were accused of (by left and right) there’d be far more 5-4 decisions then there are, and Roe would’ve been dust after O’Connor left. I think on big issues and more importantly celebrity issues that gets played up to a fever pitch. So while judges are more political than say umpires, I don’t think they’re as consumed with partisan wrath as critics often make them out to be.

      (All the talk of the hypocrisy of the Chief Justice seems rather hollow given the criticism of his first term cases being decided on excessively narrow rulings)Report

      • Avatar Mark Thompson in reply to Kyle
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        Not to reopen really old wounds, but Bush v. Gore….man. I think it was a pretty terrible and transparently political decision, but it was also a decision that had legitimate arguments to be made for both sides. In a case like that, with those kinds of stakes, the Court was in a very tough spot. On the one hand, there was no way that they could remove themselves from their political biases, particularly given that the case was just close enough as a matter of law to make those biases potentially decisive. On the other hand, if the Court doesn’t take the case at all, then they allow a very poor – as a matter of state law outside their jurisdiction – and transparently partisan decision of the Florida Supreme Court to stand and potentially decide the election.Report

        • Avatar Michael Drew in reply to Mark Thompson
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          says:

          They granted cert and stays and what have you entirely at their discretion without need, finding dubious reason for likely ‘irreparable harm’ to one candidate while any such action would transparently do symmetrical harm to the other, interfered with the due application of Florida law by Florida institutions (where the Florida supreme court is the final word), and Justice O’Connor was utterly conflicted and clearly should have recused herself. To say they were in a tough spot is rich — they did not ever need to be in that spot.

          Having said that, (leaving out the question of voter intimidation and false positives on felon roles, faulty voting equipment, which is clear violation of the 14th Am. and the VRA, and the butterfly ballot) the Florida election was a statistical tie with no true winner, so any court overturning any final tally would be a bluntly political action in any case.Report

        • Avatar Scott in reply to Mark Thompson
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          Bush v. Gore was a good decision. The FL S. Ct. was making new law in setting aside the deadline for the recount and the standard they adopted for the recount, that a “legal vote” is “one in which there is a ‘clear indication of the intent of the voter” is not really any standard at all, thereby giving rise to the equal protection claim.Report

          • Avatar Michael Drew in reply to Scott
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            says:

            Those were legitimate legal issues under Florida law that were intension with the state constitution’s protection of voters’ right to have their votes counted — which the Florida court was precisely the correct institution in Florida to resolve. If Florida had failed to resolve their election in time for the federal deadline for the reporting of presidential electors, and Florida had sought an extension of that deadline and other states or their legislators had protested, then that would have been a legitimate deadline issue for SCOTUS to resolve. As far as counting standards, that is clearly a matter for local authorities to resolve. The federal government at that time made no claim to a supervisory role over the vote recording and tabulating methods used by the states in state elections. As far as equal protection goes, “clear indication of the intent of the voter” is as good a standard as any other — no standard can eliminate the issue of interpretation when it is to be applied by multiple officials not in contanct with each other. The real violation of equal protection was and to some extent remains the differential rate of spoiled ballots across precincts — with precincts that have lower incomes having older, less-well maintained voting systems leading to greater rates of disenfranchisement. I don’t know how well this has been addressed to date, but on Nov. 7, 2000 it was without a doubt a major flaw in American democracy. But it was something the Supreme Court of the U.S. was in no position to remedy.Report

      • Avatar Bo in reply to Kyle
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        people genuinely thought the other guy was trying to game the system to win

        It’s odd that you’ve been arguing with some partisans (for example, me) lately, but you seem to be missing how partisanship works. The people who are in the pocket for a politician are called sycophants; partisans are the people who believe that the other side is acting fundamentally unfairly, and are committed to fighting against them (possibly unfairly). The word ‘partisan’ perfectly describes the hypothetical motivations you’re ascribing to the justices there.Report

        • Avatar Kyle in reply to Bo
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          Bo, it’s not odd at all, see I use partisanship denotatively and not with the connotative understanding that you have. Partisan = organized into political parties. That doesn’t mean random organizations of policy preferences, that means defined political parties – in context – the Republican and Democratic parties predominately.

          There are plenty of people who believe in pushing their party platforms and the party’s success that don’t also believe “the other side is acting fundamentally unfairly.” Just because you think so, does not implicate the rest of America by extension of your cynicism.

          So in this case, I’m making a fairly nuanced point that opposition to cheating or the appearance of cheating is not an expressly partisan action, accurately it would be an anti-partisan.

          Though the results might be the same, from my readings on the subject there is very little to suggest that the judges actively wanted their side to win. An action that would be partisan.

          From the point of view of the craven, cynical, and ideological, the world is zero sum, everything is partisan, and thus any action that impacts a party is inherently partisan. I do not believe so. It is perfectly acceptable for one to oppose breaking into the Watergate but not the Republican party or for one to oppose campaigning on military base but not our Democratic commander-in-chief.Report

  6. Avatar And
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    Article 2, Section 3:
    “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient”

    Obama:
    “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. (Applause.) I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. (Applause.) They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.”

    I don’t see anything wrong with that, and I don’t see anything wrong with Alito shaking his head in disagreement…

    Once again, the media made a mountain out of a molehill.Report

  7. Avatar Koz
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    I think this is a controversy without much substance in itself but it is indicative of two bigger points that are worth mentioning.

    1. The Left will use whatever means it can, especially wrt custom and tradition, to stifle any widespread expression of dissent against it. Eg, Greenwald here. IIRC, Greenwald supported the SCOTUS holding in Citizens United itself. But, somehow Greenwald argues Alito was in the wrong to “dissent” against the SOTU in Obama’s presence as he gave it. But that’s ridiculous. Justice Alito is not a boot at Parris Island, and President Obama is not a drill sergeant. The upshot is this: whenever the Left can plausibly invoke custom to stifle dissent, it will. When it is constrained by tradition to from arguing its own corner, the tradition is stupid and should be ignored.

    2. Wrt to the Citizens United decision itself, this is a symptom of the Left’s misunderstanding of the role of money in politics. Money is important, but it’s not the only thing there is, or even the most important thing. I like Patrick Ruffini’s take on it here:

    http://www.thenextright.com/patrick-ruffini/does-money-even-matter-in-elections-anymore

    In the current political environment, voters are looking for candidates who clearly represent how they want to interact with the political process. Once that happens, they are willing to undertake a significant part of the responsibility of getting them elected, therefore decreasing the role of money.Report

    • Avatar sfguy in reply to Koz
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      Perhaps, rather, the Left is overly sensitive to expressions like this given the fact that the Right called the president a liar in the midst of the last state of the union. This is not, of course, what Greenwald argues, but if one is to generalize him to the entire left it seems fitting to do so with Wilson as well.Report

      • Avatar Koz in reply to sfguy
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        I don’t think that has anything to do with the price of tea in China. The attempts at thought control from the Left go way deeper than that.Report

        • Avatar Bo in reply to Koz
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          The attempts at thought control from the Left go way deeper than that.

          Tin and aluminum foils are actually poor blocker of radio signals; lead foil, available at most nuclear supply shops, is worth the price differential.Report

    • Avatar Mark Thompson in reply to Koz
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      I think it worth noting a few things:
      1. The Left is actually pretty divided over what to make of Alito’s response. A good chunk have in fact defended him, including the majority of left-leaning sites I’ve come across.
      2. While I disagree with the severity of Greenwald’s response to Alito, he was hardly insisting that Alito refrain from “dissenting” from the President. Indeed, as he points out, he was a defender of the “You Lie!” moment. His argument is that Alito’s actions undermined respect for the Court and thus he shouldn’t have done it. Well, Greenwald’s right that Alito shouldn’t have acted that way; imagine the reaction on the Right if Justice Ginsberg was instead the one caught on camera, standing and applauding Obama’s line….it would have been one of outrage and taken as proof of everything the Right has ever said of liberal judges. If, as the Right is fond of saying, a judge’s responsibility is to merely coldly interpret the law without emotion or feeling, then it’s hard to see why it would be a good thing for a judge to be seen responding emotionally to a political speech. Again – that’s not anything against Alito, whose response was human and understandable in my eyes. But Greenwald’s point can hardly be seen as part of some grand attempt to silence the Right.Report

      • Avatar And in reply to Mark Thompson
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        Posts like that are why this lefty keeps coming back. 🙂Report

      • Avatar Koz in reply to Mark Thompson
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        Right, but if Ginsburg had done something like Alito in response to GWB I can’t imagine the Right would have complained, as it is in no way disruptive. If anything the Right would have wanted to argue GWB’s side on the merits, which isn’t what Greenwald is doing.

        Btw, why are you opposed to Barnett’s little paragraph? As I read him, he isn’t saying that Obama can’t criticize a SCOTUS decision, but it is kinda lame to demagogue one in the presence of the Justices themselves in a context where they are expected to not respond.

        Maybe this is all from Greenwald, in which case I’m surprised so many people care. But somehow a substantial focus of the SOTU aftermath is on Alito, at the expense of Obama.Report

        • Avatar Mark Thompson in reply to Koz
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          What the media choose to focus on is not necessarily that which deserves to be focused on. To the extent this has been the subject of endless conversation outside of the MSM, it has been almost entirely driven by the Right, applauding Alito for his actions and attacking Obama for his. There have been only a handful of negative responses to Alito’s actions from the Left, and even Greenwald’s response, as I point out above, is hardly that outrageous since he happens to be correct.

          As for what the Right would have done in your hypo, I find your counterfactual to be rather difficult to believe, particularly in light of the way in which the Right has long shouted about the notion that judges are supposed to be objective and not allow political beliefs to influence their judging.Report

  8. Avatar Klein
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    I think boiling down the case into an over simplified parable at the end detracts from your overall points, and is not that far off in tone from Obama’s attack from the lectern, insomuch as both you and Obama ignore the decision’s larger issues by narrowly defining the argumentative battleground.Report

    • Avatar Jaybird in reply to Klein
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      How about if one asked if a group of citizens had the right to make a political documentary? What if one threw out there, just for the sake of argument, the government saying that the documentary made by this group of citizens could not be shown?

      Would that be waaaay out there?Report

      • Avatar Mike Schilling in reply to Jaybird
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        Of course they have that right. They are people. If they form a corporation to make the video, that’s fine too: the corporation derives its right from the shareholders.

        Now, if a corporation exists to make pizzas, but its management decides to make a political video and does not get the approval of the shareholders to do so, they’re just stealing other people’s money to further their own political views. Tell me why that should be protected?Report

        • Avatar Jaybird in reply to Mike Schilling
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          FEC v. Citizens United was about a bunch of people who made a movie and were told to not show it.

          And the Supreme Court said that that violated their rights.

          This is not an anecdote that I’m just throwing out there hypothetically.Report

          • Avatar Mike Schilling in reply to Jaybird
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            Which is why the decision was maniacally overbroad rather than wholly incorrect.Report

            • Avatar Michael Drew in reply to Mike Schilling
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              Precisely — the case itself amply shows that the law as applied needed to be changed, while also clearly demonstrating the court’s activism on the broader questions. The matter of this law as applied could easily have been resolved within existing precedent.

              I’m unclear what Mark’s point is in making up evermore particular examples to raise the same question the facts of this case did a fine job of raising themselves…Report

        • Avatar Mark Thompson in reply to Mike Schilling
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          In some cases, it shouldn’t be protected, but doesn’t need campaign finance law to do it. In other cases, it should be protected.

          Example A: Let’s say that President of ABC Corp. decides he’s going to spend the corporation’s money to put forward a bunch of ads attacking Senator Wormtongue for being pro-life (or pro-choice, if you’d prefer). Well, your average shareholder could then sue for breach of fiduciary duty, and probably do pretty well with it.

          Example B: President of ABC Corp takes out a bunch of ads attacking Senator Wormtongue for proposing legislation that will severely hurt ABC Corp.’s profitability. This should be protected speech. The shareholders invested with the understanding that the President would use their investment to make a profit and that the company would advocate for that profit. The advertising campaign advances the shareholders’ interests qua shareholders. If an individual shareholder is unwilling to see his investment used to attack Senator Wormtongue, who the shareholder otherwise likes, then the shareholder can pull his investment. When one invests in a for-profit corporation, one is by definition expressing a desire that the corporation use that investment to maximize its profits. It’s not much different from a non-profit advocacy group – when one donates to the ACLU, one is giving the ACLU permission to maximize a slate of policy preferences through legislative advocacy, grassroots lobbying, and support for candidates friendly to the group’s mission. If you find a particular candidate preferable to one supported by the ACLU because, while the ACLU’s issues are important to you, another issue is more important to you, then you can still donate money to your preferred candidate or pull your donation from the ACLU, etc. This, in turn, is no different at all from donating to a PAC, again of your own free volition, with the intent that it support candidates of a particular ideological bent on a given issue. If that PAC gives money to a candidate whose opponent you prefer because other issues are more important to you, then so be it.

          Basically, what this will do is insure that we see more issue-based political advocacy around elections as our investment dollars and donations are used – with our express consent – to advocate for the issues in which we see fit to invest and donate. Ultimately, though, we still get to decide which of our donations and investments are most important to us when we walk into the voting booth.Report

          • Avatar Mike Schilling in reply to Mark Thompson
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            Basically, what this will do is insure that we see more issue-based political advocacy around elections as our investment dollars and donations are used – with our express consent – to advocate for the issues in which we see fit to invest and donate.

            All political ads must be approved by shareholder vote? Excellent, I missed that bit. Or, if not, what do you mean by “express consent”? Is the the same express consent that bank shareholders use to decide whether the management should, after nearly driving the bank into receivership, pay itself the usual bonuses?Report

            • Avatar Mark Thompson in reply to Mike Schilling
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              That statement doesn’t remotely imply that political ads need to be approved by shareholder vote anymore than other day-to-day operations need to be individually approved by shareholder vote. Express consent means that when one invests in a corporation, one expressly requests that the corporation’s officers maximize the profits on that investment. When they use that money for other purposes than maximizing profits, they commit a breach of fiduciary duty. Now, if you want to talk about whether it’s too hard to successfully sue for breach of fiduciary duty, then I’m all ears. But whether we like to think it or not, the very act of investment is a pretty political act in and of itself.

              Think of it this way – You invest in a company that sells Green Goo, which happens to be politically unpopular but very profitable. All of a sudden, a bunch of busybodies say they want to ban Green Goo. Doesn’t the company have a duty to you, the shareholder, to fight to make sure that Green Goo remains legal? Is it necessary for them to take a shareholder vote before they do so (assuming their charter doesn’t otherwise require it)? As long as you remain a shareholder of the company, you are giving the company’s officer’s pretty clear instruction to politically fight to keep Green Goo legal.Report

              • Avatar Mike Schilling in reply to Mark Thompson
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                says:

                When they use that money for other purposes than maximizing profits, they commit a breach of fiduciary duty.

                Like when they pay themselves bonuses that don’t actually increase productivity, or buy a corporate jet that’s a status symbol rather than a way to save money on airfares? Or go offshore because on the surface it looks like a way to save on wages and they can’t be bothered to figure out the cost of reduced communication and oversight? What the hell, for most investors the company is just one line item on their 401K, and they’re not going to be paying nearly enough attention to see this stuff.

                What you’re saying is, you want to enhance the current culture of management doing whatever the fuck they want to include using the investors’ money as a slush fund to play politics, because it might be sensible in an ideal world where management acts responsibly. You might have gathered that I disagree.Report

              • Avatar Mark Thompson in reply to Mike Schilling
                Ignored
                says:

                Hey, like I said, I’m all ears when it comes to reform of what is and is not an appropriate act of fiduciary responsibility – in other words, where CEOs run a business as their own personal playground, shareholders should have a stronger ability to attack that culture. But a corporation spending money campaigning against a change in the law that will undermine its profitability? That strikes me as something that pretty clearly furthers the purpose of the shareholders’ investment.

                Beyond that, whether I “want to enhance the current culture of management . . . to include using the investors’ money as a slush fund to play politics” is irrelevant to the legal and constitutional question. Just because one might not like something doesn’t make it constitutional to prohibit it.

                The legal question here turned not on whether “corporations have free speech rights” as it is being characterized, but instead on whether the government has a compelling interest in prohibiting independent expenditures expressly advocating for or against a candidate by a corporate entity. The lack of success of limiting anti-democratic corporate influence on the process would strongly suggest that the interest in prohibiting it is not very compelling. That the prohibition also prohibits a lot of speech that is clearly not dangerous – the ACLU, the company seeking to promote its movie, etc. – also strongly suggests that the infringement on speech was overbroad. But the legal issue is not “do corporations have the same rights as citizens.”Report

    • Avatar Mark Thompson in reply to Klein
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      says:

      Fair enough. Perhaps I should have clarified that it was an attempt to directly address the specific argument, made repeatedly in comments here and in other posts, that the issue is simply one of “corporations are not people, therefore they have no freedom of speech.” The point of my parable is that it’s not remotely as simple as that. Nor is this a case of reductio ad absurdum because almost those exact facts were what was before the Supreme Court (except that it was videos rather than T-shirts). Whether the Court could have used narrowed grounds to rule in favor of the corporation is another question entirely, but the key here was just to show that the “corporations are not persons and thus speech is not infringed when their electioneering is prohibited” is a legally weak argument. The case instead turned on whether there is a compelling interest for regulating corporate political speech. This is a much different proposition from the notion that corporations have no free speech rights in the first place.Report

      • Avatar ASKlein in reply to Mark Thompson
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        says:

        Though I don’t ultimately agree with your argument, it is one of the more persuasive I’ve read on the issue. I guess I was making a rhetorical quibble. As per your above comment about the left’s being split over Alito’s reaction I fall in the don’t-care camp, and you put it best as to why, “So when the President stands up just a few feet in front of a Justice and announces to the entire nation that his work product is actively evil, while misrepresenting what that work product actually said and did, it’s perfectly understandable that the Justice might exhibit a little emotion in their expressions, and maybe mutter some things under their breath.” Because we are all human. But the incorrigible lefty in me would have preferred something more aggressive from Obama in the first place; go big or go home, as they say in the Midwest.Report

        • Avatar Mark Thompson in reply to ASKlein
          Ignored
          says:

          Thank you for the kind words. And I’m always open to rhetorical quibbles – they force me to look back at what I wrote and reconsider. In this case, I definitely could have written that paragraph better and more clearly.

          As for whether Obama should have been more aggressive – I’m in favor. If a politican actually shows that he believes what he’s saying, I’ll at least listen to him; otherwise, he’s not saying anything I haven’t heard before, just using different words.Report

  9. Avatar Mike Schilling
    Ignored
    says:

    “corporations are not people, therefore they have no freedom of speech.”

    Good Lord, no one would say that. That that are not people, therefore they do not have precisely the same freedom of speech guaranteed by the First Amendment, though? Certainly.

    An an analogy, can a corporation circumvent domestic partnership laws by joining a religion that disapproves of same-sex relationships? Of course not, you say, the notion of a corporation belonging to a religion is idiotic, it’s not as if they were …

    Yes?Report

    • Avatar Mark Thompson in reply to Mike Schilling
      Ignored
      says:

      I wouldn’t say no one – I’ve seen numerous people make precisely that argument in precisely that language, perhaps including the phrase “end of story.”

      The key thing here is that the corporations act as agents for their shareholders. So I’m not sure I get your hypothetical. To the extent religious objections to provision of domestic partnership benefits are recognizable (and I’m not at all sure that they are) , I don’t see how a corporation would need to be treated any differently from an unincorporated sole proprietorship. But more generally, the notion of a corporation having freedom of religion would fit well within the same type of framework as I outline above – the individual shareholders would have their freedom of religion; they would also have a right to exercise that freedom of religion via the corporate form.Report

      • Avatar Mike Schilling in reply to Mark Thompson
        Ignored
        says:

        The key thing here is that the corporations act as agents for their shareholders.

        No, they are empowered to use the money invested by their shareholders. Period. Shareholders have little or no say over anything else about the corporation, and if you read Professor Bainbridge, you’ll be told repeatedly that this is a good thing. To give the corporation the additional power to use shareholder’s money for political purposes is the kind of concentration of power we have far too much of already.Report

        • Avatar Mark Thompson in reply to Mike Schilling
          Ignored
          says:

          No one holds a gun to a shareholder’s head and tells him “invest or else.” When a shareholder invests, they invest for the sole and express purpose of making a profit at a particular activity. If the company doesn’t try to make a profit with that money, then it is breaching its duty to the shareholder. What if a group of a company’s shareholders write to the CEO to tell him that he has their permission to earmark their investment for the purpose of advocating the defeat of a politician unfriendly to the company? Does it hurt other shareholders if he does as that group asks?

          The corporation is just the tool through which the shareholders speak in their capacity as shareholders.Report

          • Avatar zic in reply to Mark Thompson
            Ignored
            says:

            And what of pension and mutual fund investments?

            Most folks in this country own investments in corporations through funds; a much smaller number are direct shareholders.

            Shareholders of publicly traded corporations don’t get to speak in any capacity except in the election of board members. (This is, in part, why I prefer to keep investments in private companies. I get a say in how the company’s run.)Report

      • Avatar Michael Drew in reply to Mark Thompson
        Ignored
        says:

        From where I sit, this seems to be a recurring issue with you, Mark, so I am going to point it out to you directly because you seem to have solicited rhetorical quibbles elsewhere in this thread. You argue against positions you (claim) to have seen held by people whose views you mentally associate with those of the person you are arguing, whether or not they hold that position or are arguing it. I guess the shorthand for this is a straw man, but I’m not claiming you are making up the positions out of whole cloth. You just don’t cite things specifically, but go ahead and tag people here with what you have read elsewhere. “Liberals do X,” or a version of that, you say regularly when you believe you are arguing with a liberal, whether or not the liberal in question has just done X. I don’t know if you intend to do this, if you are aware you do it, or if you would even agree that you do it. If no one agrees with me, then perhaps I am serially misreading you. But since you asked about your rhetoric I thought you might want to hear this. It can be an exasperating practice for your interlocutors to regularly confront.Report

        • Avatar Mark Thompson in reply to Michael Drew
          Ignored
          says:

          Michael:
          I’ve gone back through the last several threads. I have to be honest, I think your perceptions are off-base. I know you think the Dionne piece was measured and made no claims about the efficacy of the campaign finance regime, but I can’t agree with that assessment given his use of words like “dangerous” and “havoc,” etc. At one point he even goes so far as to say the precedent restricting corporate IE’s was “working” – but no explanation of how this was the case. Dionne’s reaction was just one of many I could have cited, including now, it would seem, the President himself (not to mention Grayson’s Dred Scott remark, amongst others). I still have no idea how, exactly, those expressing this outrage and panic expect this decision will make things so much worse. I understand that you don’t necessarily hold to that view yourself, but if that’s the case, then those arguments were not addressed to you.

          I also found at least four different commenters in this and the previous thread repeating the assertion (see, e.g., comment 12 in the previous thread) – which I have seen on a number of blogs, as well – that corporations don’t have rights, because only people have rights, and thus the SCOTUS decision is preposterous. I think it important to explain and demonstrate that this does not answer either the narrow or broad question that was before the Court. It also does not answer the question of whether the Court was correct to reach the broad question (and FWIW, I suspect that the answer to that is “no,” even though I think it answered the question correctly once reached).

          That said, I agree that I’m not the greatest at directly citing what I’m responding to, and I’m trying to get better with that.Report

  10. Avatar Mike Schilling
    Ignored
    says:

    Could the company that makes Viagra marry a tux rental service, or only in some states?Report

  11. Avatar Trizzlor
    Ignored
    says:

    Alright, we get it, the decision was constitutional. But let’s not pretend that it’s affects will be limited. As with most of the libertarian maxims there is a very real danger of the more powerful entities taking advantage of limited resources and consolidating their hold over the market. And unlike with competing products, this will likely encourage campaigning politicians to pander even more to corporations.Report

  12. Avatar Johnw
    Ignored
    says:

    I am not bothered by Alito’s response at all. The real value of the judicial branch is not that we have men and women capable of making nonpartisan judgements about constitutionality – a fondly held myth. It is that the Supreme Court is the only branch which we can reliably assume has a high enough group IQ to be wary of The Law of Unintended Consequences.Report

    • Avatar Art Deco in reply to Johnw
      Ignored
      says:

      John w,

      I may be mistaken, but I think the federal Supreme Court annulled three (3) pieces of statutory legislation during the entire antebellum period. During the latter third of the nineteenth century, I think it may have annulled something like twenty statutes. There has been a secular increase in the Court’s insistence on regulating political life, which is now being extended into the conduct of war. If they do not exist to make comparisons between different laws according to guild protocols, why do we employ them?

      It is that the Supreme Court is the only branch which we can reliably assume has a high enough group IQ to be wary of The Law of Unintended Consequences

      What, that they will be wary of unintended consequences or that they will generate the because they fancy themselves so clever? (Thomas Sowell would argue the latter is the danger). That aside, I am not sure why you assume members of Congress or cabinet Secretaries are lacking in general intelligence. Lacking in prudence or character, perhaps, but why would one think law professors well endowed in those regards?Report

  13. Avatar Johnw
    Ignored
    says:

    Look at it this way: Usually the Supremes had two types of unintended consequences to worry about
    1) Consequences as a direct result of their ruling.
    and
    2) Consequences as a result of Congress response to their ruling.

    Since they know that the D’s cannot even get laws passed with a 60-member majority and that R’s have no inclination to pass anything, the Supremes can now disregard the second type, and be more disposed to overturning precedent. With the bitter partisan division within the general population being what it is, this could last a long time… until a powerful unintended consequence happens! Yes, a lot of statutory law has to be re-done, and will.
    Whether we have a President who can think very far ahead is a flip of the coin but Congress? No, I don’t think so. That’s not to say there are no intelligent Congressmen, but that there is a very large group of really dumb ones who drag the whole down.

    It’s ironical that we have a Court that is so conservative by Conservative’s current definitions, and so liberal and lacking in what was Conservative’s older standard: Respect for tradition.Report

    • Avatar Art Deco in reply to Johnw
      Ignored
      says:

      Johnw, with two changes in personnel, one of which might be significant and one of which likely is not, this is the court that ruled that the voters of Colorado were acting against the federal constitution when they amended their own constitution to restrict the power to enact ‘gay rights’ legislation to the state legislature. Stated reason: restricting the autonomy of local government in this manner inconveniences homosexuals, the liberal mascot group du jour. The notion that this court is ‘conservative’ in the sense of enacting the policy preferences of the Republican Party cannot be taken seriously.Report

  14. Avatar Johnw
    Ignored
    says:

    If “conservative” is taken to mean anti-homosexual and evangelical religious rather than reapectful of tradition, then you’re right.Report

    • Avatar Art Deco in reply to Johnw
      Ignored
      says:

      Both an opposition to the agenda of the gay lobby and an agreeable regard for evangelicals are positions that it is unobjectionable to hold. Neither substantive public policy nor dispositions toward social groups should have been at stake in Romer v. Evans. The question was procedural: can the voters of Colorado, though an amendment to their state constitution, vest sole discretion over ‘gay rights’ legislation in their state legislature. It beggars belief that any provision of the federal constitution says they cannot. Yet the federal Supreme Court arbitrarily invalidated a duly enacted provision of the Colorado not for any reason within the Court’s proper competence, but because Justice Kennedy et al are in the tank for the gay lobby.

      The Court is not ‘conservative’. It seems ‘conservative’ to a certain sort because that sort carries about with them a sense of proprietorship about all that they see. The feel the public square is properly theirs, the news media is properly theirs, higher education is properly theirs, the professional associations are properly theirs, and the Courts are properly theirs. When these venues do not function as an extension of their will, they fancy these have been hijacked. Get over it.Report

        • Avatar Johnw in reply to Art Deco
          Ignored
          says:

          Bork is not a Supreme. What he thinks doesn’t matter.Report

          • Avatar Jaybird in reply to Johnw
            Ignored
            says:

            While I enjoy rhetorical questions like “are the Supremes the ultimate arbiters of Constitutional law now?” as much as anybody else, I would point out that it is possible to disagree with a Supreme Court ruling and have, like, totally good (and Constitutional!!!) reasons for doing so.

            I mean, jeez. If I used “yeah, well, you’re not on the supreme court” as a counter-argument to someone arguing for/against *ANY* given Supreme Court case, I’d be disappointed if people didn’t come pouring out of the woodwork to start yelling at me.Report

      • Avatar Johnw in reply to Art Deco
        Ignored
        says:

        What am I supposed to be “getting over”? I don’t give a a damn about any of that. You like to think that dispositions toward social (or financal) groups never plays a part. That is a fiction and always has been. It always plays a part. Supremes don’t check in their emotions at the door, otherwise there’d never be these fights between the left and right over new Justices. That is what YOU need to get over. And this “sense of proprietorship” sort are all in your head – it just a lot of disparate people checking to see what the latest Court will buy. Lay off the conspiracy nut stuff and you’ll make more sense.Report

        • Avatar Art Deco in reply to Johnw
          Ignored
          says:

          You like to think that dispositions toward social (or financal) groups never plays a part.

          I neither state nor implied that, and, in fact, offered a complaint that Justice Kennedy et al acted unprofessionally because they are partial to a particular class of plaintiffs. That should not happen, but, of course, it does. It is your insistence that it is to be expected that judges impose their policy preferences; it is my insistence that if adjudication is merely the imposition of policy preferences, there is no justification for judicial review. We have an elected legislature; we do not need a board of tenured lawyers performing similar functions.

          I offered no conspiracy theories. I have been following public affairs for thirty-odd years and was once active in local politics (in a leftoid organization). As far as I can see, that’s pretty much what is latent in liberal discourse about the courts, the college faculties, &c. Of course, I am not an ethnographer, so I cannot speak with all that much authority on the subject.

          Robert Bork is a former appellate judge and law professor. I suggested his commentary because he has an educated opinion on the Court’s activities and can explicate their misfeasance in full detail. His opinions are not binding precedent, but very few people’s are; if you thing offering commentary on public policy and law is a useless exercise, why are you shooting your mouth off in this forum?Report

          • Avatar Johnw in reply to Art Deco
            Ignored
            says:

            Maybe I’m shooting off my mouth because I don’t share your reverence for a failed old fraud that never measured up in the 1990’s, much less having relevance today.
            You say you offer no conspiracy theories and yet you prattle on about all these “sorts” empowered by a sense of proprietorship. You rail against gay lobbies, as if they were any different than any other lobby that is a normal part of the system. And then, laughably, you cry because Justice Kennedy ruled differently than you wanted. You cry like you want somebody to have pity on you! Well, Take hope! What else can I do but pity you when you now offer up this pathetic resume! You’re trying to impress me! You did this. You did that. Thirty years ago you did… something. All right, I’ll offer you a daisy: You are just like Robert Bork! What a complement! You are not a has-been! Like Bork, you are a never was… just another deluded dreamer who fell short.Report

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