No respect from Stevens [Updated}

Citizens United v. FEC in plain English:
[Via SCOTUSblog]

By now, you have likely heard the news: The Supreme Court ruled yesterday that the government may not keep corporations (and probably, as Lyle reasons in his post yesterday, labor unions) from spending money to support or denounce individual candidates in elections. While the business entities may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads, especially where these ads were not broadcast. Why? Because the First Amendment guarantees the right to free speech, and political spending is one form of that protected speech.

The four dissenting Justices were vocal and vociferous: They voiced the concern that allowing unfettered spending by rich corporations will allow those corporations to influence the outcome of elections in sweeping ways. They also explained that corporations are not human beings and should not have the same free speech rights that humans do.

As Lyle explained in his post yesterday, certain campaign finance rules remain valid after the Court’s decision. Corporations spending more than $10,000 a year on such ads have to disclose the names of donors who supported them. And corporations must reveal who sponsored the ad. Only Justice Thomas did not agree with these restrictions.

The case involved the now-notorious film produced by Citizens United that sought to discredit Hillary Clinton’s presidential candidacy. In ruling that Citizens United could not broadcast the film, the lower court invoked a federal law (known to most of us as McCain-Feingold) which prohibited corporations from spending money to broadcast “electioneering communications” within a certain number of days before an election. In other words, the law heavily restricted corporations’ political speech in the form of spending, as well as the timing and forum of broadcasts. Labor unions had been similarly restrained under federal law for over sixth years.

The timing of the decision is exquisite. With the mid-term elections coming up later this year, the decision is sure to prompt many corporations to make room in their budgets for political spending.

Much about today’s decision was not unusual: The Court was split five-to-four, along typical ideological lines (Thomas, Roberts, Alito, Kennedy, and Scalia in the majority, Sotomayor, Breyer, Ginsburg, and Stevens dissenting). The case made sweeping changes in federal election law, overturning previous Supreme Court cases and clarifying language in others.

But there were quite a few things about the Citizens United announcement and opinion that were unusual.

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One of the unusual things in this decision was this:

Finally, unusual detail number four. Justice Stevens read his dissent (or some of it – if he had read all ninety pages, we’d still be in Court) from the bench. While the author of the majority opinion will often select a key portion of that opinion to read from the bench, it is quite unusual for a dissenter to do so. When it happens, it’s a sign that the dissenter feels very strongly that the Court got it wrong. Because the Court has a stake in operating as a uniform body – which is what keeps the rule of law alive, after all – dissenters generally “respectfully” dissent, both in writing (check out the last line of almost any dissenting opinion) and in conduct.

You can search the dissent for the words “respectfully” and fail to find it. Thomas “respectfully” dissents from the section he was against. But not Stevens.

In fact, he “empahtically” dissents. As I mentioned below, the final paragraph of the dissent is pretty straightforward. It tells me that there are some interesting views under the surface:

At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

He actually ended by saying he affirmed the lower court’s ruling, not even mentioning the Supreme Court. I’d love to be a fly on the wall. Especially since it appears that Stevens might not be back next year.

[UPDATE: As an example, in Bush V. Gore, Stevens did "respectfully" dissent. But not here.]

Technorati Tags: Politics

I love reading dissents of important cases

from Wikipedia

It can be really fascinating to read the dissents on Supreme Court cases where the majority is historically wrong. In almost every case, the dissent is clear and straightforward. The words from the Court’s opinion are usually tortuous. As I said:

Truth is not usually hard to understand. Whenever you read impenetrable legal prose, there is usually a reason they do not want you to understand.

Plessy v. Ferguson is a case I have written about before, even way back in the early days of this blog. In that one, I gave examples of the convoluted language used by the majority:

The object of the amendment [the 14th] was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either.

<snip>

…all persons without distinction of age or sex, birth or color, origin or condition, are equal before the law. . . . But, when this great principle comes to be applied to the actual and various conditions of persons in society, it will not warrant the assertion, that men and women are legally clothed with the same civil and political powers, and that children and adults are legally to have the same functions and be subject to the same treatment; but only that the rights of all, as they are settled and regulated by law, are equally entitled to the paternal consideration and protection of the law for their maintenance and security.

While this from the lone dissenter is absolutely clear:

…in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is, therefore, to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a State to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

This was written by the guy whose views were ‘wrong.’ Hard to disagree with him today.

This week we had another court case that I believe will be viewed very negatively by history. Overturning 100 years of precedent by a slim majority does not make a court case that should hold up for long. But we appear to have a court that in many ways mimics the Lochner era Court, one that is becoming more and more out of tune with where we are, both politically and as a culture.

Well, let’s look at the dissenting opinion from the latest atrocity of the neo-Lochner Supreme Court of today. These were written by Justice Stevens, who the oldest Justice on the Court. Here are some quotes:

The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

<snip>

The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution. Before turning to the question whether to overrule Austin and part of McConnell , it is important to explain why the Court should not be deciding that question.

<snip>

These concerns are heightened when judges overrule settled doctrine upon which the legislature has relied. The Court operates with a sledge hammer rather than a scalpel when it strikes down one of Congress’ most significant efforts to regulate the role that corporations and unions play in electoral politics. It compounds the offense by implicitly striking down a great many state laws as well.

<snip>

A century of more recent history puts to rest any notion that today’s ruling is faithful to our First Amendment tradition.

<snip>

The fact that corporations are different from human beings might seem to need no elaboration, except that the majority opinion almost completely elides it. Austin set forth some of the basic differences. Unlike natural persons, corporations have “limited liability” for their owners and managers, “perpetual life,” separation of ownership and control, “and favorable treatment of the accumulation and distribution of assets … that enhance their ability to attract capital and to deploy their resources in ways that maximize the return on their shareholders’ investments.”

<snip>

It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.

<snip>

The Court’s blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve. It will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.

And here is its conclusion, which leaves no doubt about his opinion of the poor reasoning used by the majority:

Today’s decision is backwards in many senses. It elevates the majority’s agenda over the litigants’ submissions, facial attacks over as-applied claims, broad constitutional theories over narrow statutory grounds, individual dissenting opinions over precedential holdings, assertion over tradition, absolutism over empiricism, rhetoric over reality. Our colleagues have arrived at the conclusion that Austin must be overruled and that §203 is facially unconstitutional only after mischaracterizing both the reach and rationale of those authorities, and after bypassing or ignoring rules of judicial restraint used to cabin the Court’s lawmaking power. Their conclusion that the societal interest in avoiding corruption and the appearance of corruption does not provide an adequate justification for regulating corporate expenditures on candidate elections relies on an incorrect description of that interest, along with a failure to acknowledge the relevance of established facts and the considered judgments of state and federal legislatures over many decades.

In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules. The majority’s rejection of this principle “elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.” Bellotti , 435 U. S., at 817, n. 13 (White, J., dissenting). At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.

I would affirm the judgment of the District Court.

Hard to disagree with him. I wonder how long it will take to change this ruling. Hopefully not the 50 years it took with Plessy v. Ferguson.

The Lochner era ended when the Supreme Court, particularly Justice Roberts, changed his voting habits. This coincided with the court reform suggestions of FDR, that included adding several more judges, and resulted in the coining of the phrase “the switch in time that saved nine.“

I wonder what will signal the end of this era?

Technorati Tags: Politics

Acid oceans

Seattle Times: Broad stretch of Pacific ocean confirmed to be more acid as CO2 soaks in:
[Via Knight Science Journalism Tracker]

A University of South Florida team published this week what may be the first sign at the scale of an entire ocean basin that sea water acidity is measurably increasing due to higher levels of carbon dioxide. And almost nobody wrote it up.

The exception in view to the Tracker and among traditional media is the Seattle Times, where Sandi Doughton got it in Wednesday’s edition. The news, from a team at the University of South Florida with participation by Seattle-area scientists, has its results in the journal Geophysical Research Letters. Data are from water samples gathered (including from the vessel pictured, UWash’s R/V Thomas G. Thompson) from waters between Hawaii and Alaska in 1991 and again three years ago. They report finding that, when the logarithmic pH scale is converted to a linear measure, acidity in the top 300 feet of ocean has risen about 6 percent.

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This, to me, is the most worrisome aspect of carbon dioxide – water absorbs it, lowering the ocean’s pH. Things with external calcium structures, such as coral or plankton, are unable to properly form them if the pH is just slightly more acidic than ocean water is today.

And if plankton levels crash, so does the entire ocean ecosystem that lives off of plankton. Not too good.

All those denialists who claim our carbon dioxide is having no effect on climate should be worried about the carbon dioxide effects on pH.

Technorati Tags: Environment, Science