The Supreme Court’s Shoddy Scholarship

January 28th, 2010 by Andy in Judicial System & The Courts

Spot on analysis from Ruth Marcus

In opening the floodgates for corporate money in election campaigns, the Supreme Court did not simply engage in a brazen power grab. It did so in an opinion stunning in its intellectual dishonesty.

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“If it is not necessary to decide more, it is necessary not to decide more,” a wise judge once wrote. That was Chief Justice John Roberts—back when—and dissenting Justice John Paul Stevens rightly turned that line against him. 

As bad as the court’s activism, though, was its shoddy scholarship. 

First, the majority flung about dark warnings of “censorship” and “banned” speech as if upholding the existing rules would leave corporations and labor unions with no voice in the political process. Untrue. Under federal election law before the Supreme Court demolished it, corporations and labor unions were free to say whatever they wanted about political candidates whenever they wanted to say it. They simply were not permitted to use unlimited general treasury funds to do so. Instead, they were required to use money raised by their political action committees from employees and members. This is hardly banning speech.

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The “conceit” of corporate personhood, as Stevens called it, does not mandate absolute equivalence. That corporations enjoy free speech protections does not mean they enjoy every protection afforded an actual person. Is a corporation entitled to vote? To run for office?

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Fourth, the majority bizarrely invoked the “Mr. Smith Goes to Washington” defense. Under the Austin ruling, Justice Anthony M. Kennedy argued, lawmakers unhappy with being lampooned in the movie “could have done more than discourage its distribution—they could have banned the film.” Beyond untrue. There is no scenario under which works of art about fictional lawmakers could be limited by campaign finance laws. 

That the majority would stoop to this claim underscores the weakness of its case—and the audacity of the result it has inflicted on the political process.

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