We’re one judge away from government of the corporations, by the corporations, and for the corporations.
By Jamie Raskin
Here’s a little quiz you won’t find on the LSATs: Which Supreme Court justice called a recent ruling by the court a “threat to American democracy”? And what decision was it?
A. Justice Ruth Bader Ginsburg wrote it of the Citizens United decision, which armed corporations with the political free speech rights of human beings.
B. Justice Sonia Sotomayor included this phrase in her dissent to the Shelby County v. Holder ruling, which gutted the Voting Rights Act of 1965.
C. Justice Elena Kagan said it while reflecting on the Bush v. Gore case, which shut down the counting of more than 100,000 ballots in Florida — handing George W. Bush his first presidential win.
D. Justice Antonin Scalia penned these words when he objected to the recent Obergefell ruling, which struck down marriage discrimination against gay and lesbian Americans.
The answer is D.
I made up the rest, but they’d all be far more accurate than what Scalia said in real life.
It’s hard to think about the state of American democracy without pondering the Supreme Court. As the least democratic branch of the federal government, it’s always had outsized importance in shaping the opportunities for citizens to participate in our political institutions and social life.
At its best, the Supreme Court has upheld the principle of “one person-one vote,” struck down whites-only party primaries, and invalidated educational apartheid. It did those important things when less enlightened views might have been more popular.
At its worst, the court has upheld poll taxes and literacy tests, okayed restrictive photo ID requirements for voting, knocked the teeth out of the Voting Rights Act, and intervened in the 2000 election to stop vote counting.
For better or worse, the Supreme Court defines the rules of engagement of American politics. So what’s at stake in the 2016 presidential race?
A whole lot.
With several justices already over 80, the next president could nominate as many as four new members of the court. Will the new justices bolster the conservatives, who favor legislative power only when it violates minority rights, or the liberals, who have demonstrated a serious commitment both to voting rights and to the legislative process?
With the plutocratic Chief Justice John Roberts and Scalia leading the way, the conservatives pose as outraged populists regarding marriage equality. They pretend, ludicrously, that they don’t believe in the court reviewing and invalidating popularly enacted laws.
What a joke. The same justices have no problem with nullifying laws that implement affirmative action, produce majority-minority legislative districts, or exclude corporations from spending money in political campaigns.
These so-called conservatives strike down almost any law that curtails the power of corporations. They just don’t like the idea of equal protection and due process applying to people.
These same so-called conservative justices have some questionable ethcal issues as well:
- Justices Antonin Scalia and Clarence Thomas attended Koch Brothers political functions at a time when the court was considering loosening limits on corporate campaign contributions.
- Justice Samuel Alito spoke at a fundraising dinner for the conservative American Spectator magazine, where tickets were sold for as much as $25,000 a plate.
- Justice Thomas failed to report his wife’s income from the Heritage Foundation, even as she lobbied against the Affordable Care Act while cases worked their way to the Supreme Court. He also failed to recuse himself from ACA-related cases despite a clear conflict of interest with his wife’s work.
But here’s the principal question facing the court for the foreseeable future: Who is the Constitution for? Is it for corporations, or the rest of us?
Right-wing forces want to scrap all limits on campaign spending and contributions. They want corporations to be treated as free speech actors in elections, but they don’t want workers to have any free speech rights in the workplace.
They also embrace elaborate photo ID requirements, narrow registration laws, and endless barriers to voting for communities of color and young voters.
If a future Republican president replaces even a single liberal justice with a conservative, we could wind up with a democracy of the corporations, by the corporations, and for the corporations. Regardless of Justice Scalia’s fantasies, this is the real threat to American democracy.
Jamie Raskin is a professor of constitutional law at American University, a Maryland state senator, and a Senior Fellow at People For the American Way. He is the author of Overruling Democracy: the Supreme Court v. the American People. Distributed via OtherWords.org