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FANTASIES AND MYTHS FROM THE BENCH (PART II)

August 20, 2014

FANTASIES AND MYTHS FROM THE BENCH (PART II)
John Marshall, already the fourth Chief Justice of the United States Supreme Court in a brand new country (the USA) that only had its official start 12 years earlier, served in that capacity for 34 years, from 1801 to 1835, a very long tenure compared to that of his predecessors and even those since. He was appointed by outgoing president John Adams shortly before Jefferson became president, and just in time. Adams and Marshall were Federalists; Jefferson, Adams’ vice-president, was not.
Marshall authored many decisions having to do with anchoring our new country’s legal structure, but for our purposes here, probably the most important decision of his tenure was in Marbury v. Madison in 1803, only two years after becoming Chief Justice. That case held (for the first time and without any language in the Constitution to support it – originalists, take note) that the Supreme Court of the United States has the power to overturn a congressional act because it violates the Constitution. An “originalist” could argue that that court had no constitutional basis for such judicial usurpation of congressional powers since, like corporations, such power is unidentified in the Constitution, and thus that the court’s finding was itself unconstitutional (as I believe Citizens United to be today).
It therefore appears that today’s court is not the first one to engage in fantasy and myth-building. Marshall (like the court today that finds corporate charters lying around in Secretary of States’ offices to be people with rights of speech and the right to lather money on those who will do them favors in political office) pulled that one out of thin air. However, I am retrospectively pleased with the result that the Supreme Court can declare an Act of Congress to be unconstitutional; it is just that I don’t think Marbury was the appropriate vehicle for attaining such a result. I think it should have come about by Constitutional Amendment so as to make clear the power granted, its exercise in practice, and perhaps some limitations on such powers conferred (like no authority to override a congressional Declaration of War or count votes in state-run elections a la Bush v. Gore, for instance). I think finally that we missed out on a golden opportunity in our history to corral runaway courts prone to judicial fantasy by our failure to constitutionally give them the power to overturn congressional acts while at the same time limiting such appellate jurisdiction to explicitly reduce the courts’ excursions into The Land of Oz.
Citizens United will likely become a name associated with an era, an era in which corporate ideology has swallowed Supreme Court jurisprudence. The right wing 5-4 Roberts Court today, not satisfied with the Rehnquist’s Court’s abjectly political decision to pick a president in 2000, has now decided to go that court one better: This court by its findings in Citizens has facilitated a handover of our political process to corporate money and power. The fundamental finding of Citizens for our purposes here is that it holds that private corporations (unmentioned in the Constitution, as we have seen) enjoy the same political free speech rights as people under the First Amendment and may spend unlimited sums of money in promoting or disparaging candidates for public office.
Proof of the court’s desire to fashion the issues not present in the Citizens United petition to suit their later decision is found in their sending the case back for briefing in an earlier finding. Citizens United as originally filed did not raise the issues upon which the court wished to find, so the court sent its petition back for briefing on points of issue not in the suit by petitioner, or as dissenting Justice John Paul Stevens noted, the justices in the majority “changed the case to give themselves the opportunity to change the law.” What led up to the court’s decision to have the facts refashioned and law reargued below so as to afford the court with an opportunity to make the political decision they were plainly aching to make, and what are the alleged facts in need of a redo in order to suit the court’s move to hearing and decision based on fantasy rather than facts and law as set out in Citizens’ first petition?
The petitioner, Citizens United, asked only in its first petition for a ruling that the electioneering provisions of the McCain-Feingold (Campaign Reform) Act did not apply to its on-demand-movie about Hillary Clinton. Nothing was mentioned in the petition relating to the court’s later and draconian findings about speech freedom, humanization of corporations or opening up corporate spigots of unending campaign contributions in exchange for political favors (aka bribes). The court plainly wanted to rule on matters outside the petition, so they sent if back down for massaging and return so that they could then rule on issues that were absent in the initial petition.
It worked. Presto! The reworking of the petition fit well and accommodated the new issues raised to suit the court’s flight into fancy, the 5-4 court acted upon such new issues, and real people and democracy are and have been and will be suffering greatly as a result of such shenanigans. All five wizards skipped happily down the yellow brick road to the new Land of Oz (now inhabited by a grateful corporate America) where the wizards handed them the rest of America they have not yet conquered. It will take a constitutional amendment to correct this giant assist to corporate dictatorship, and we should have had this process on the road long before now, because Citizens United and democracy cannot coexist.
To reiterate from Part I, Citizens United has a past – it didn’t just pop up from some isolated take in judicial history. Its history probably started with a Big Tobacco corporate lawyer from Richmond, Virginia, who Nixon later appointed to the Supreme Court, Justice Lewis Powell. Before assuming the bench, Powell represented and served on the board of Philip Morris. He wrote a now famous memorandum in 1971 to his friend, Eugene Sydnor, an official of the United States Chamber of Commerce, in which his almost hysterical language contained some of the following: “The American economic system is under broad attack by Communists, New Leftists and other revolutionaries” and also by “perfectly respectable elements of society,” including “the college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and from politicians.” He described the corporate community as apathetic and ineffective and lacking the stomach and institutional capacity to fight back. He recommended that there should be a broad response to such horrors that would be funded by large corporations and coordinated by the Chamber of Commerce, Wall Street’s then biggest lobbyist in Washington. He then proceeded to advise Sydnor that their new strategy should be for corporate America to start using the Supreme Court to empower corporations, just like the ACLU, labor unions, civil rights groups etc. And did they ever (speaking of horrors)!
Justice Powell was prescient; the Supreme Court was his strategic ace in the hole and its employment by corporate America has paid benefits to this sector beyond anyone’s imagination at the time the memo was drafted and delivered (See Citizens United, McCutcheon, choosing presidents favorable to Wall Street – the list is endless, and continuing). I will write more on Powell’s memo and its effects and future implications (such as the end of democracy) in Part III. Stay tuned. GERALD E

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