The Republican senators who voted against Sonia Sotomayor feared her appointment to the Supreme Court would lead to an orgy of judicial activism, with the justices wildly making laws instead of interpreting them.
It looks as if she’s joining a court that is out to do just that, but the judicial activism is about to be indulged in by the ideological soulmates of the same senators who condemned Sotomayor.
Judicial activism has been a label borne by liberal to moderate Supreme Courts for decisions the Right didn’t like since the Warren Court ruled in Brown v. Board of Education that school segregation was unconstitutional, as was the long enshrined doctrine of separate but equal.
But Brown wasn’t a 5-4 liberal squeaker; it was a unanimous decision forged by the Eisenhower appointee, Republican Earl Warren. The historic Griswold decision, which established privacy as a constitutional right and paved the way for Roe v. Wade, was a 7-2 decision. Even Roe, the most maligned effort of “judicially active†justices, was upheld by seven justices and written by Nixon appointee Harry Blackmun.
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This time, the situation is quite different. The court’s conservative wing has used a relatively uncomplicated case to set the stage for a 5-4 decision, the outcome of which could drastically alter our elections.
On Sept. 9, the court will convene for a special session that was called by Chief Justice John Roberts and the sometimes conservative majority he has crafted with the almost sure votes of Justices Scalia, Thomas and Alito and the sometime support of Justice Anthony Kennedy.
When the last term ended in June, the court declined to rule on a case that involved a ban on showing “Hillary: The Movie,†a film that a conservative advocacy group produced in 2008 to attack Hillary Clinton’s candidacy for president. The Federal Election Commission, citing the McCain-Feingold Law against corporate-financed ads or other “electioneering communications†being broadcast 30 days before a primary or 60 days before a general election, had voted not to allow the Clinton film to be shown on cable television and the case was appealed to the Supreme Court.
The question was whether a 90-minute film could be treated the same way as a 30-second campaign commercial and a decision addressing that question could have settled it.
But instead of deciding the case on narrow grounds, the Roberts majority voted to schedule a second argument for September on the broader question of the First Amendment right of corporations to contribute to campaigns.
The New York Times Supreme Court reporter Adam Liptak has noted that the Roberts court has struck down every campaign finance regulation to reach it because it has had the support of the four conservatives and Justice Kennedy in all of them.
In declining to rule on the Hillary movie, the court instructed the parties to come back and argue whether it should overrule a decision that upheld restrictions on corporate contributions and a 2003 decision upholding the McCain-Feingold law’s ban on corporate ads designed to elect or defeat specific candidates.
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Corporations have been barred from contributing to political campaigns for more than a century and a ban against unions engaging in the same activity was added in the Taft-Hartley Act more than 60 years ago.
The contributions that do find their way to candidates under the names of corporations and unions come from the organizations’ political action committees. PACs are company- or union-organized committees of employees, members, owners and their immediate family members who join out of a desire to give their hard-earned money to a candidate or cause of the PAC’s choice, which always bears a remarkable resemblance to the company’s choice.
These “voluntary†contributions are credited to the company or union and are a patently phony way of getting around the legal ban. They are bad enough, but imagine if the corporations — and the prosperous unions that still exist — could dip into their own treasuries and add millions of dollars more to the campaign of a candidate they favor.
Senator Dodd’s hefty financial support from the political action committees of financial firms whose activities he oversees as chairman of the Senate Banking Committee has been rightly questioned. Imagine if those millions were enhanced by direct contributions from the corporations who seek his and his colleagues’ access, attention and understanding.
That could happen if the court’s carefully rigged special session next month results in a 5-4 decision that says corporations with their billions should be allowed to express their First Amendment rights by buying ads supporting the candidates of their choice.
The only hope is that one of the five — Roberts, Alito, Scalia, Thomas or Kennedy — surprises the rest and decides having America’s corporations control America’s politics isn’t a very good idea.
Dick Ahles is a retired journalist from Simsbury. E-mail him at dahles@hotmail.com.
