“Walking In Justice Morrison R. Waite’s Footsteps”: Citizens United’s Legal Roots Lie In The Jim Crow Supreme Court
As John Roberts begins his second decade as the chief justice, a number of Supreme Court rulings during his tenure are once more in the news, perhaps none more so than Citizens United v. Federal Elections Commission. The 5-4 decision, which applied First Amendment guarantees of freedom of speech to a private corporation, has been targeted lately by Democrat presidential candidates Hillary Clinton (“Citizens United was about me. Think how that makes me feel.”) and Bernie Sanders, who declared this week, “No nominee of mine to the United States Supreme Court will get that job unless he or she is loud and clear that one of their first orders of business will be to overturn Citizens United.” Americans are equally hostile to the decision: A national poll released by Bloomberg Politics this week found that 78 percent of respondents want Citizens United overturned, while only 17 percent support the ruling.
What many Americans might not know, however, is that the manner in which corporations came to be granted personal rights is inextricably linked to a series of late nineteenth century Supreme Court rulings that disemboweled the Fourteenth and Fifteenth amendments and ushered in the Jim Crow era, when state and local laws were passed to create racial segregation.
The Fourteenth Amendment, ratified in 1868, was aimed at securing fundamental rights for the four million newly freed slaves. Section 1 conferred citizenship on any person born in the United States, made them citizens of the state in which they resided, and guaranteed all Americans “due process of law” and “equal protection of the laws.” To the man who drafted that section of the amendment, Representative John Bingham of Ohio, this meant that the personal guarantees of the Bill of Rights would apply to state as well as federal law. Most in Congress who voted for the amendment agreed, and we take such guarantees against state action for granted today. And the Fifteenth Amendment, of course, guaranteed black men the right to vote.
But after Chief Justice Salmon P. Chase died in 1873, protections for black Americans began to unravel, all enabled and often mandated by the Supreme Court.
President Ulysses Grant had a great deal of difficulty filling Chase’s seat. Having failed three times to find an acceptable candidate, he settled on Morrison R. Waite. It was not a choice based on excellence. Waite was described by Grant’s attorney general as “sufficiently obscure for the occasion,” and characterized by the Nation as firmly “in the first rank of second rank lawyers.” Stung by the criticism and determined to make his mark, Waite decided to author the majority opinion in the most inflammatory case on the 1876 docket, United States v. Cruikshank.
On Easter Sunday, 1873, 250 heavily armed white men, dragging a cannon behind them, besieged 150 black men who, in the wake of a ferociously disputed gubernatorial election, had taken refuge in the courthouse in Colfax, Louisiana. The hopelessly outgunned black men surrendered, whereupon the whites proceeded to slaughter them. At least 100 died, some burned alive in the courthouse, others hunted down as they tried to escape into the woods. Federal prosecutors feared that state courts would acquit any of the whites charged, so they turned to a law that transferred race crimes to federal court and indicted one hundred whites for violating the Constitutional rights of the murdered black men. Only three were convicted. (The suspects could not be tried for murder, which was strictly a state crime.) The three appealed on the grounds that under the Fourteenth Amendment, the federal government had no right to restrict the actions of individuals, only states.
Waite agreed. Only if an attack could be proven to have been racially motivated could individuals run afoul of federal law, and the mere fact that 100 black men were massacred by an armed force of whites was not proof enough. Cruikshank and his fellow defendants went free.
Once emboldened, the Court continued to chip away. Also in 1876, in United States v. Reese, the Court ruled that the Fifteenth Amendment did not actually guarantee the right to vote, but only that the right to vote not be restricted on racial grounds. And such restrictions would be almost impossible to prove. In Virginia v. Rives (1879), the Court ruled that a state had to announce that a law was discriminatory in order to violate Fourteenth or Fifteenth Amendment guarantees. In other words, that virtually no black men in Virginia were on the voting roles or called for jury service was not in itself proof of discrimination. As a result, restricting voting rights through such contrivances as poll taxes, literacy requirements, grandfather clauses, or other ludicrous tests was perfectly acceptable under federal law.
Then, in 1883, the Waite Court administered the coup de grâce to equal rights when it ruled 8-1 that Congress had no authority to outlaw discrimination by private individuals or organizations and declared the Civil Rights Act of 1875 unconstitutional.
The Civil Rights Act of 1875 was perhaps the most far-reaching legislation of its kind ever enacted by Congress. Section 1 stipulated, “That all persons within the jurisdiction of the United States shall be entitled to the full and equal and enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement.” But it was also extremely unpopular. Few white Americans, in the South as well as North, were prepared to sit next a black person in a theater, dine in the same restaurant, or even walk in the same park. Restaurants and hotels closed rather than accept black customers. A New York Times editorial denounced the law: “It has put us back in the art of governing men more than two hundred years … startling proof how far and fast we are wandering from the principles of 1787, once so loudly extolled and so fondly cherished.”
It took eight years, but five cases were combined and brought before the Court. Three were from the North and none from the Deep South. Justice Joseph Bradley, writing for the majority, could not have been more clear. “Individual invasion of individual rights is not the subject matter of the [Fourteenth] amendment.”
In the wake of the Court’s decision and after a number of other cases where the Court claimed to adhere to the letter of the law while bulldozing its spirit, every southern state rewrote its Constitution in a manner that effectively removed black citizens from the political process. Between 1897 and 1900 in Louisiana, for example, the number of black men registered to vote fell from 130,344 to 5,320. And so Jim Crow was born. Between 1890 and 1903, 1,405 black Americans were lynched in the United States.
Then, having rewritten the Fourteenth Amendment to the detriment of African-Americans, the Court rewrote it once more to protect American corporations. It was an era of burgeoning corporate power, particularly railroads, and many of the justices had specialized in corporate law before being elevated to bench. In a seemingly innocuous 1886 case, Santa Clara County v. Southern Pacific Railroad Company, a unanimous Court ruled that a railroad could not be taxed for fences that had been erected by the state and were therefore not part of the railroad’s property. More significant, however, was an aside taken down by a court reporter, in which Chief Justice Waite asserted, “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”
From there, corporations began to receive the very same Fourteenth Amendment and Bill of Rights protections that had been denied to black Americans, so much so that the eminent legal historian Edward S. Corwin wrote in 1909, “This tribunal began a reinterpretation of the Fourteenth Amendment in the light of the principles of Lockian individualism and of Spencerian Laissez Faire, which traverses the results it had previously reached at every point.” Corporate power soared still more in the wake of the Court’s stance, with critics accusing railroad men and other corporate giants of trying to buy the country.
And these corporate protections, wholly extra-Constitutional, continue to be reinforced today. So in Citizens United, when Justice Anthony Kennedy wrote for the majority to grant free speech rights to a corporation established for the sole purpose of trying to buy an election, he was walking in Morrison Waite’s footsteps. Not a particularly exalted place to be.
By: Lawrence Goldstone, The New Republic, October 2, 2015
“Delivering The Promised Conservative Paradise?”: The Supreme Court Is Poised To Deliver Conservatives A String Of Big Victories
The Supreme Court’s new term begins today, and it brings with it a paradox. On one hand, the Court is poised to deliver conservatives a string of sweeping, consequential victories on issues covering a wide swath of American life. On the other, conservatives are up in arms about how they’ve been betrayed by the Court, and particularly by Chief Justice John Roberts, despite the fact that Roberts has in all but a couple of cases been as reliable a conservative vote as they could have hoped for.
Let’s look at what’s coming. Among the cases the Court will be hearing are an affirmative action case involving the University of Texas, a case asking whether congressional districts must adhere to a “one person, one vote” standard, a case testing state restrictions meant to shut down abortion clinics, a case asking whether public-sector unions can require non-members who benefit from their collective bargaining to contribute to those efforts, and yet another lawsuit challenging the Affordable Care Act’s contraception provision.
While a couple of them may be in doubt, it’s entirely possible that by the time this term ends next June, the Court will have driven the final stake into affirmative action, struck a fatal blow against public-sector unions, enhanced Republican power in legislatures by reducing the representation of areas with large Hispanic populations, given a green light for Republican-run states to make abortions all but impossible to obtain, and undermined the ACA. Even if one or two of those don’t go how Court observers expect, it’s almost certainly going to be a great term for Republicans.
And while they’ve had a couple of recent high-profile defeats at the Court, conservatives have enjoyed a conservative majority for a couple of decades now. Yes, Anthony Kennedy sometimes joins with liberals, as he did in the case legalizing same-sex marriage. But just in the last few years, they’ve seen the doors of campaign finance thrown open to unlimited spending by corporations and billionaires; the Voting Rights Act gutted; affirmative action all but outlawed; an individual right to own guns created for the first time in American history; corporations granted religious rights to exempt themselves from laws they don’t like and sectarian prayer allowed at government meetings; unions undermined and employment discrimination suits made more difficult; and a whole series of less well-known decisions that enhance the power of the powerful, whether it’s the government or corporations.
Nevertheless, when you hear conservatives talk about the Court, they don’t say, “We need to make sure we get more conservative justices to keep winning.” Instead, they say, “We’ve been betrayed!” So what’s going on?
There are a couple of answers. The first is that they’re demanding not just a record of wins, but absolute perfection. They want not justices who will bring a conservative philosophy to the Court, but justices who will never stray from whatever it is the Republican Party wants at a particular time. The recent decision in King v. Burwell is a perfect example: the lawsuit itself was a joke, based on a series of claims about the Affordable Care Act that ran from the clearly false to the laughably ridiculous. When John Roberts sided with the majority to dismiss it — despite a long record of being on the “right” side of all the cases I mentioned above, plus many more — they declared him to be an irredeemable traitor.
The second reason is that narratives of betrayal are central to how conservatives understand history. Whenever events don’t turn out as they would like, whether it’s a foreign war or a lost election or a societal evolution, the story is always the same: We were betrayed, either by our opponents or by the people we thought were our allies. Was the Iraq War a terrible idea? No, we had it won — until Barack Obama betrayed us by pulling out. Why was George W. Bush so unpopular? Because he betrayed conservative principles by not cutting spending more, just like his father betrayed us by raising taxes (while the younger Bush was still president, longtime conservative activist Richard Viguerie wrote a book entitled “Conservatives Betrayed: How George W. Bush and Other Big-Government Republicans Hijacked the Conservative Cause).” As Digby memorably wrote, “Conservatism cannot fail, it can only be failed. (And a conservative can only fail because he is too liberal.)” And it goes back as far as you want. Why did the Soviet Union come to dominate Eastern Europe? Because FDR betrayed us at Yalta.
It isn’t that there’s never any truth in this story, particularly when it comes to the Court. David Souter, for instance, turned out to be a genuine liberal, not at all what Republicans expected when he was appointed by George H. W. Bush. But they’ve gotten so used to the betrayal narrative that they place even a single setback into it. Which may explain why conservative opinions of the Court have changed so dramatically in recent years. According to Pew polls, in 2008, 80 percent of Republicans approved of the Supreme Court, compared to 64 percent of Democrats. By 2015, the views of Democrats hadn’t changed — their approval was at 62 percent. But Republican approval had fallen to 33 percent, despite all they had won at the Court over that time. A full 68 percent of conservative Republicans call the Court “liberal,” an idea that is absurd by any objective measure, but one that is regularly fed by conservative media and Republican politicians.
To be clear, Republicans are right to focus on the Supreme Court during the campaign, and Democrats ought to as well. As I’ve argued before, there may be no single issue more consequential for America’s future in this election than what will happen to the Supreme Court in the next four or eight years. But Republicans aren’t just arguing that it’s important for them to elect a Republican so they can get friendly justices, they’re arguing that even Republican presidents and Republican-appointed justices can’t be trusted not to turn into judicial Benedict Arnolds.
If you’re someone like Ted Cruz, this idea fits in nicely with the rest of your message, at least during the primaries: the real enemy isn’t the Democrats, it’s the feckless and unreliable Republican establishment that has failed to deliver the conservative paradise we were promised. Which is why no one is louder in condemning Roberts than Cruz (who supported Roberts wholeheartedly when he was nominated). But I wonder, will they change their tune when the Court gives them one victory after another over the next nine months?
By: Paul Waldman, Senior Writer, The American Prospect; The Plum Line, The Washington Post, October 6, 2015
“Teamwork On The Supreme Court”: Discipline On The Left Side, Disarray On The Right
Now that the current term is over for the Supreme Court, analysts are digging into the record to draw conclusions about what happened. In a fascinating analysis, Adam Liptak writes: Right Divided, a Disciplined Left Steered the Supreme Court.
The stunning series of liberal decisions delivered by the Supreme Court this term was the product of discipline on the left side of the court and disarray on the right.
In case after case, including blockbusters on same-sex marriage and President Obama’s health care law, the court’s four-member liberal wing, all appointed by Democratic presidents, managed to pick off one or more votes from the court’s five conservative justices, all appointed by Republicans.
They did this in large part through rigorous bloc voting, making the term that concluded Monday the most liberal one since the Warren court in the late 1960s, according to two political-science measurements of court voting data.
“The most interesting thing about this term is the acceleration of a long-term trend of disagreement among the Republican-appointed judges, while the Democratic-appointed judges continue to march in lock step,” said Eric Posner, a law professor at the University of Chicago.
For example, this session there were 19 SCOTUS decisions that were decided 5/4. In 10 of those, the four liberals voted together and were joined by one conservative. In contrast, the conservatives only voted together 5 times.
Ian Millhiser suggests that the problem for the conservative justices is that they “represent three – and possibly as many as five – distinct versions of judicial conservatism.”
* The Ideologue – Clarence Thomas
* The Partisan – Samuel Alito
* The Reaganite – John Roberts
He points out that Scalia purports to be an “originalist” (like Thomas), but mostly votes as a partisan. And he can’t seem to find a way to characterize Kennedy.
Liptak credits the cohesion among the liberal justices to the leadership of Justice Ginsberg. But I’m also interested in how they managed to pretty consistently pick off one of the conservative justices to vote with them. I was reminded of something Adam Winkler wrote about Elena Kagan almost 2 years ago. He described her as a justice in the mold of Earl Warren.
Warren didn’t accomplish these by embarrassing his colleagues or by making sharper arguments on the merits. Warren was a master politician, one who’d sit with the other justices and bring them along slowly and steadily to his side. He sought to understand other justices’ concerns and address them. Unlike most of today’s justices, Warren was willing to work the halls to gain five votes.
He says this about why Kagan was chosen to be the dean of Harvard’s Law School:
She was seen as someone who could bring together a faculty known for ideological and personal divisions that institutionally hobbled the law school, especially when it came to hiring. As dean from 2003 to 2009, she calmed faculty tensions, launched an aggressive hiring spree that netted 32 new professors, and earned praise from both left and right.
I remember that some liberals opposed Elena Kagan’s nomination. But it strikes me that President Obama would see “bridge-builder” as a necessary role for someone to play on the Supreme Court. It’s exactly how people describe his tenure as President of the Harvard Law Review.
If that’s the case, here’s what we know about the 3 women on the Supreme Court: the senior member is Ruth Bader Ginsberg – the Notorious RBG – tiny woman who throws quite a punch. Then there’s my hero, Sonia Sotomayor, the wise Latina with a heart as big as they come. And finally, there’s Elena Kagan, the bridge-builder. What a team!
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, July 2, 2015
“Stochastic Terrorism”: Did The Four Dissenting Justices In Gay Marriage Case Just Suggest Treason?
In controversial cases, is the role of jurist to inflame controversy, or quell it?
In Loving v. Virginia, the 1967 case which found race-based marriage bans unconstitutional, Chief Justice Earl Warren built a 9-0 consensus—just as he’d done years earlier in Brown vs. Board of Education. He knew that a country divided by race ought to be united, if possible, by a Supreme Court mindful of fundamental values—even if the Court was, as the constitution requires, overturning the will of the majority.
The four dissents in the landmark case on same-sex marriage, Obergefell v. Hodges, one by each of the conservative justices on today’s Supreme Court, take a very different view. With invective and hyperbole, they pour fuel on the fire of the controversy over same-sex marriage. Rather than merely state their views and disagreements, they use heated language to accuse the five-person majority of imperialism, a “putsch,” and worse.
Thus, the unprecedented calls of elected officials for open revolt against the Supreme Court—a shocking display of treason—are now accompanied by calls from within the Court itself that Obergefell is illegitimate, and the Supreme Court itself no longer worthy of full respect.
Ironically, in alleging a new low for the Court, these four justices have brought one into being. Justice Scalia has, as usual, grabbed the spotlight with juvenile taunting usually reserved for the playground. But in fact, all four opinions are shocking.
Chief Justice Roberts (joined by Scalia and Thomas) makes a solid, and unsurprising, substantive case. There is, after all, no explicit right to marriage (for gays or anyone else) in the Constitution; it is, rather, a fundamental right inferred into the Fourteenth Amendment’s guarantees of due process and equal protection. Thus, one might expect a judicial conservative like Roberts to be suspicious of expanding it, particularly when doing so runs against the expressed will of a majority of state legislatures.
But the way he chose to cast his argument ill befits his status as chief justice. “The majority’s decision is an act of will, not legal judgment,” he writes. That is absurd: the court’s decision runs thirty pages, full of all the legal judgments, precedents, and statements of principle one would expect.
But that’s just the beginning. Across four pages, Chief Justice Roberts analogizes Obergefell to the Lochner v. New York decision, one of the most notoriously wrongheaded in Supreme Court history. Lochner means nothing to most people, but to anyone who’s finished the first year of law school, it’s a swear word.
He’s still not done. The Chief Justice of the United States then states (quoting a concurring opinion by Justice Kennedy) that “the legitimacy of this Court ultimately rests ‘upon the respect accorded to its judgments.’ That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change.”
In other words, the majority is arrogant, unrestrained, and thus not to be respected. It has an “extravagant conception of judicial supremacy.” “Those who founded our country would not recognize the majority’s conception of the judicial role.” And “The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it.”
Why not just tell the Religious Right to buy pitchforks and blowtorches? Chief Justice Roberts’ ironic opinion is immoderate in alleging immoderacy, extreme in alleging extremism.
Justice Scalia came next. And he begins thus: “I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.”
It seems inevitable that rhetoric like this will stir the next Confederate flag-waving zealot to an act of, if not domestic terrorism, at least outrageous revolt. How could it be otherwise? And yet this, too, was only the first line.
The next line is, at best, disingenuous: “The substance of today’s decree is not of immense personal importance to me.” As if. This from the man who, 12 years ago, wrote in his Lawrence v. Texas dissent that the Court “has largely signed on to the so-called homosexual agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
Is that what the LGBT equality movement is about? Throughout Justice Scalia’s hysterical writing in LGBT-related cases, he has doggedly maintained that their subjects are merely “homosexual conduct” and “homosexual sodomy.” That there are, in fact, gay and lesbian people is not part of Justice Scalia’s worldview, as he has shown time and time again. There is only homosexual conduct.
And yet he says, like a “no homo” jock in a locker room, “Hey, I don’t care if you’re gay.”
Once again, just getting started. “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” That is outrageous rhetoric and an outrageous sentiment. The decision is not a “decree.” The Court is not a “Ruler”—it is an Article III interpreter of the Constitution, at its most important when it protects minorities against the will of the majority. Even demeaning Supreme Court justices as “lawyers” is a sign of disrespect.
Other statements are similar. “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.” “What really astounds is the hubris reflected in today’s judicial Putsch.” And, “With each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
Others have already quoted Justice Scalia’s rhetoric—“jiggery-pokery” and the rest—at length, so I won’t spend much time with it here. Because in fact, his jurisprudence is far more shocking. Watch this:
When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification.
I have quoted this passage at length so there is no misunderstanding. What Justice Scalia is saying here is that if it was “universal and uncontroversial” in 1868, it’s obviously okay now. That principle, of course, would allow states to ban interracial marriages, including that of Justice Thomas. It would allow states to bring back the doctrine that a woman surrenders all her rights to her husband upon marriage. It is shocking.
To be sure, it is also of a piece with Justice Scalia’s “originalism” and is not, as such, novel. But its strict application here places Justice Scalia in a bizarre twilight-zone of 19th century values.
Likewise, Justice Thomas’s description of “the dangerous fiction of treating the Due Process Clause as a font of substantive rights.” That “fiction” has protected rights to contraception, to abortion, and to all kinds of intimate family matters. Justice Thomas’s reactionary jurisprudence would erase half a century of gains in the area of civil rights.
And likewise Justice Alito’s talking-point dictum that the opinion will be “used to vilify Americans who are unwilling to assent to the new orthodoxy.” This, of course, is a commonplace on the Religious Right—but its appearance in a Supreme Court opinion is nonetheless shocking.
But it is Justice Alito’s parting jab which resonates the most. Obergefell, he writes, evidences “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” This from someone who joined an opinion overturning fifty years of due process jurisprudence, and another arguing a return to 1868’s family values.
“All Americans,” he concludes, “should worry about what the majority’s claim of power portends.” Claim of power—as if the Constitution does not empower the Court to do exactly what it has done: use reasoning and interpretation to defend constitutional rights against laws that would abridge them.
These are, as the saying goes, fighting words, and more importantly, they are words that will inspire others to fight. They are what some call “stochastic terrorism,” the broadcasting of a message so incendiary as to inspire some “lone wolf” to violence—if not actual violence, then precisely the kinds of anti-democratic, anti-American defiance we have already seen among some politicians.
Were the targets of such acts only gays and lesbians, it would be bad enough. But these four dissents have encouraged disrespect of the Supreme Court itself. Agree or disagree with the Court’s method of interpreting the Constitution, they are acts of vandalism against one of the foundations of our democracy.
By: Jay Michaelson, The Daily Beast, June 27, 2015
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