One of the ten-ton elephants or bombshells or other colorful journalistic euphemisms awaiting us in the SCOTUS vacancy weeks ahead following the announcement today that Justice John Paul Stevens will retire is Citizens United v. Federal Election Commission.
Judging by his words today, the unpopular decision may be a key part of President Obama’s summer political strategy.
Earlier this spring, when Justice Stevens took significant time to read from his blistering dissent in Citizens United, speculation ensued about whether Stevens was reaching the end of his time on the high court. In part, he wrote:
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.
. . . .
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.
Then, shortly thereafter, in President Obama’s State of the Union address, Obama registered his opposition to the decision — directly to several of the justices in attendance. As the NYT’s Linda Greenhouse wrote:
Mr. Obama’s words were sharp, echoing his earlier criticism of the court’s decision last week in the Citizens United case to strike down the limits that the McCain-Feingold campaign finance law placed on independent political expenditures by corporations and unions. The decision would “open the floodgates for special interests — including foreign companies — to spend without limit in our elections,” Mr. Obama said, adding that “I don’t think American elections should be bankrolled by America’s most powerful interests.” He urged Congress to “pass a bill that helps correct some of these problems.”
With Stevens due to retire, the President shot one more arrow directly at the Citizens United opinion, saying this afternoon of his pick to replace Stevens:
It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.
So, that’s a key qualification now.
- For my take on the contributions that Justice Stevens made to LGBT equality while on the Court, here’s my article at Metro Weekly.
- Ari Shapiro — in his first solo day covering the White House for NPR — takes on the vacancy and what it means for Obama.
- Lyle Denniston at SCOTUSblog gets in his first take.
- The Washington Post talks to Jonathan H. Adler, Erwin Chemerinsky and Walter Dellinger about how Obama should make his pick.
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