“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
“There Is No Such Thing As Settled Law”: If You Liked 10 Years Of The Roberts Court, You’ll Love The Next Republican President
There were plenty of terrifying moments in this month’s Republican presidential debate on CNN, but one of the most terrifying, to me, was when the candidates started to complain that the current U.S. Supreme Court isn’t conservative enough.
Specifically, Jeb Bush and Ted Cruz went after Chief Justice John Roberts, who has led what law professor Erwin Chemerinksy has called “the most conservative court since the mid-1930s” but whose appointment the conservative far-right Cruz nonetheless called a “mistake.” What Cruz objected to was Roberts’ two votes to save the Affordable Care Act from frivolous conservative lawsuits. What he didn’t mention is that a less conservative right-wing Court would not have even entertained those politically motivated cases in the first place. In fact, the Court under Roberts has taken a stunning turn to the Right.
Today marks the 10th anniversary of the day Chief Justice Roberts was sworn in to the Supreme Court. In that decade, aided by the confirmation of fellow George W. Bush nominee Samuel Alito, he has led a Court that has radically reshaped vast swathes of the law, undermining constitutional protections for civil rights and voting rights, reproductive freedom, workplace fairness, the environment, gun violence, consumer fairness and representative democracy as a whole.
As People For the American Way explains in “Judgment Day 2016,” a new analysis of Roberts’ decade at the head of the Supreme Court, under his leadership the Court “has issued more than 165 5-4 decisions, many of which have bent the law and defied logic, seriously harmed the rights of ordinary Americans, promoted the interests of powerful corporations, and damaged our democracy.”
The most infamous of these is probably Citizens United v. FEC, which, along with a set of related cases, gutted the country’s campaign finance system, allowing wealthy individuals and corporate interests almost unchecked influence over American elections. But the Roberts Court’s gifts to Corporate America did not end there. Among the cases decided by the court’s five-justice conservative majority were Ledbetter v. Goodyear Tire and Rubber Co., which undermined women’s ability to seek equal pay for equal work; Burwell v. Hobby Lobby, which upended religious liberty protections to allow corporations to deny full health insurance coverage to their employees; and AT&T v. Concepcion, which protected corporations that cheat large numbers of customers out of small amounts of money.
The Court’s conservative right-wing bent has extended to civil rights cases, most stunningly its 5-4 ruling gutting the enforcement mechanism of the Voting Rights Act, which had allowed the Justice Department to review changes in voting laws in areas with a history of racial discrimination in election practices. In other cases, the court has been just one vote away from wreaking havoc on civil rights laws, including the 5-4 decision in which Justice Anthony Kennedy joined the four moderate Justices to preserve the ability to effectively enforce the Fair Housing Act, another critical achievement of the Civil Rights Movement.
This Court will rightly be remembered by many as the one that guaranteed gays and lesbians the right to marry in Obergefell v. Hodges. But that landmark case, in which Justice Kennedy joined the moderate Justices, was one bright spot in a very bleak landscape.
It’s important to remember as well that Chief Justice Roberts, whom Republicans are now attacking as too liberal, wrote the conservative justices’ scathing dissent in that case. If conservatives get one more vote on the Supreme Court, Obergefell could be in danger. If there is one thing the Roberts Court has taught us, it is that there is no such thing as settled law. Despite predictions that the Republican Party would just fold up its tent on the marriage issue, its presidential candidates are campaigning with promises to appoint Justices who will overturn the decision.
Whatever issue you care about most in the upcoming election – civil rights, health care, reproductive freedom, LGBT rights, or others – it will almost certainly end up before the Supreme Court. And the composition of that Court, and whether it will protect our rights or defer to big corporations and right-wing interests, will depend greatly on whether a Democrat or Republican is elected as our next president.
By the end of the next president’s first term, four of the current Supreme Court Justices will be in their 80s, past modern Justices’ average retirement age of 78. This means that the next president will likely have the power to either turn back the Court’s rightward swing … or preserve or worsen it for decades to come.
By: Michael B. Keegan, President, People for The American Way; The Huffington Post Blog, September 29, 2015
“Perry Gets Winnowed”: He Had No Distinct Identity In A Huge Field Dominated By People Who Were Going Medieval
The “winnowing” of the vast GOP presidential field proceeded apace this weekend, with Rick Perry “suspending” his campaign. Officially, that means there are 16 “real” candidates left. Unofficially, CNN excluded Jim Gilmore from even its Kiddie Table debate this week, so there are a mere 15 left.
Perry’s withdrawal has been widely predicted since he stopped paying his campaign staff last month. Even as Team Perry argued that his Super-PAC was flush and the not-paying-campaign- people thing was an accounting problem, he lost his prize Iowa backer Sam Clovis, and in general began to emit the aroma of political death. The rest has been denouement.
The thing is: Perry was running a significantly deeper campaign than he did in 2012, when he alternated between pointing at Texas’ jobs numbers as a self-validating argument for a give-corporations-everything-they-want “economic development strategy,” and raging right-wing gestures aimed at everybody in the GOP who wanted to go medieval on the godless liberals.
This time around Perry impressed even me by making a speech reminding Republicans they were the party of the Fourteenth Amendment. It didn’t catch on. Nor did his regular reminders that he was (along with Lindsey Graham) the rare candidate in a field of war-mongerers who had actually worn a uniform. The CW will suggest that Perry never overcame his 2012 missteps. I’d say he had no distinct identity in a huge field dominated by people who were going medieval just as he was trying to move along to the Renaissance.
His withdrawal rebuts the idea that anybody with a Super-PAC can stay in the race right up until the convention, and will provide an interesting test of what happens to leftover Super-PAC money, as the New York Times‘ Jonathan Martin notes:
The super PACs backing Mr. Perry, collectively known as Freedom and Opportunity, had a raised more than $17 million as of earlier this summer, mostly from a handful of wealthy Texas families, dwarfing the amount raised by his campaign, which was limited by law to raising only $2,700 from each donor. Mr. Perry’s advisers were uncertain what would happen with the super PAC money, but noted that much of it came from a pair of Dallas executives, Kelcy Warren and Darwin Deason, and that they would be consulted.
Presumably, since Super-PACs are supposed to be “independent,” this one can do any damn thing it wants, other than covering the back pay Perry staffers are owed. They, of course, will be scrambling for a new gig, and despite this tiny “winnowing,” it remains a seller’s market for GOP political talent.
By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, September 14, 2015
“Electioneering Committees”: Buying A President For 30 Bucks And Change
For today’s report, I have a bunch of statistics for you. Wait — don’t run away! Where are you going? Come back here and sit still while I drill these stats into your head! It’ll be fun, and you’ll learn something.
I realize that numbers can numb the brain, but this is a good story, and I promise that these statistics are easy to absorb. In fact, the number 400 pretty much sums up this story of political intrigue and corruption involving some of America’s wealthiest families and corporations.
Let’s start with the “Billionaire 400,” a clique of the elite organized by the conniving Koch brothers. These ultra-rich right wingers gather each winter in some warm-weather resort for a secretive, invitation-only retreat. There, they plot strategies and pledge money to elect politicos who’ll support their vision of corporate rule in America. For the 2016 elections, they’ve already committed nearly a billion dollars to impose their vision of plutocracy over our democratic ideals — double the combined amount that the Republican and Democratic parties will spend. I wonder: What do they think they’re getting for that price?
Then there are the secretive SuperPACs that are sacking up tens of millions of dollars to back various presidential candidates. Again, a few hundred corporations and rich families — each writing checks for hundreds of thousands and even millions of dollars — have put up nearly half of all the money in these electioneering committees.
Keep that 400 number in mind when I offer my sincerest congratulations to Mr. and Mrs. Middle-Class America, since they are all the rage in this present presidential contest, for Jeb, Hillary, and all the rest — even The Donald — say their campaigns are all about the hurting middle class that hasn’t yet recovered from the Great Recession. Well, don’t look now, but after each one promises that they’ll do the most for the Great Mass of the Middle Class, they disappear into the shadows and scurry off to schmooze with the little group of Americans they truly love: The exclusive club of multimillionaires and billionaires, who are shoveling those big bucks into those campaign pockets.
Now, back to our statistics: Jeb Bush got a million dollars each from 26 of his SuperPAC backers; Hillary Clinton took a million each from nine funders; of the $16 million in Marco Rubio’s PAC, 78 percent came from only four donors; and Ted Cruz got the most from the fewest, taking practically all of his $37 million from just three fat-cat families.
So while candidates for the highest office in our land are soaking up applause for the grand rhetoric they’re giving to the middle class, they’re also quietly collecting millions of dollars by pledging their steadfast fealty to the ruling class. Donating millions is not an innocent or noble political transaction. Written on the back of each of their checks is their own corporate agenda, trumping the people’s agenda.
Ironically, it’s Donnie Trump, the bombastic billionaire, who candidly admits that these so-called “gifts” amount to the outright, plutocratic purchase of politicians. He’s long been a campaign donor in order to secure political favors, he confesses, and it works: “When I need something from them … they are there for me.” There’s a word for that: Corruption.
But now, here comes the antidote to this corruption of our politics by fat cats. Instead of being financed by 400 special interests, Bernie Sanders’ campaign has raised its $15 million (as of July) from over 400,000 ordinary Americans. In fact, the average donation to Bernie is a heartwarming, soul-saving $31.30!
You can’t buy a president for just over 30 bucks — but you can help elect one who isn’t owned by Big Money. And isn’t that the way democracy ought to be?
By: Jim Hightower, The National Memo, September 9, 2015
“Supreme Court; If It’s Worth It For Corporations, Pollution May Be Okay”: EPA Can Only Regulate Pollution When It’s Cost-Effective
While LGBTs and healthcare reformers are still nursing their celebratory hangovers, the final Supreme Court case of the 2014-15 term just junked twenty years of environmental regulations.
The case, Michigan v. EPA, specifically dealt with the EPA’s regulation of mercury emissions from power plants under the Clean Air Act—a long, twenty-year process that has been opposed by industry at every turn, even as mercury air pollution from coal-fired power plants has ++irreparably poisoned the Great Lakes .
Today, the clock has been set back. In its third 5-4 decision of the day, with Justice Kennedy again providing the swing vote, industry has prevailed. Writing for the court, Justice Scalia held that the EPA had to factor in costs in deciding whether to regulate, not just how to regulate.
If you think about it, this is an impossible task practically and philosophically.
Practically speaking, the regulatory process for mercury has lasted twenty years—in large part because the EPA weighed dozens of options, evaluating the costs and benefits of each. Today’s decision requires the EPA to balance costs and benefits at the very beginning of the process, before either the costs or the benefits are known.
EPA’s position was that, while costs must, of course, be taken into account in deciding how to regulate toxic chemicals like mercury, the initial decision of whether to regulate them should not be dictated by how much it costs to do so. What matters at that point—whether regulation is “appropriate and necessary” under the statute—is only whether public health is at stake.
In policy-speak—as I wrote in a law review article twenty years ago—the difference is between “risk assessment” and “risk management.” Risk assessment is when you notice a leak in your basement, and decide you have to do something about it. Risk management is when you evaluate your options, and decide what to do.
The difference is obvious, and intuitive. But it does mean that the initial decision may not take cost into account.
Thus the EPA argued that the words “appropriate and necessary” do not imply a balancing of costs and benefits, only a determination of public health. Justice Scalia said this was not “reasonable decisionmaking.” As Justice Kagan said in her dissent, the EPA took costs into account later in the regulatory process. But Justice Scalia said that is not enough—the initial decision, too, must include costs.
This is as incoherent philosophically as it is practically. Think about it this way: Who owns the right to your health?
In the EPA’s reasoning, you do. Under the Clean Air Act, if someone else’s activities are going to meaningfully endanger your health, the government is entitled to stop them.
In Justice Scalia’s reasoning, now the law of the land, the toxic chemical emitters do. If it is economically efficient to poison you with mercury—if the costs to them outweigh the benefits to you, calculating an economic value of your health—then they get to do it.
If this seems outrageous, it’s because it is. Justice Scalia had to focus exclusively on the first sliver of the regulatory process in order to make his argument. “EPA’s interpretation precludes the Agency from considering any type of cost,” he writes. But that’s only true at the initial decision of whether to regulate or not (risk assessment). In subsequent decisions of how to regulate (risk management), cost was taken into account many times.
Which is what makes sense philosophically, as well as practically. Deciding whether to regulate a toxic substance should not be an economic decision. Deciding how to do so should be—of course, the government should choose the most efficient method of regulation, and balance costs and benefits appropriately. But the decision of whether a toxic substance is toxic is a matter of science, not money.
Zooming back a bit, Michigan v. US now starts to look a lot like the corporations-are-people cases like Citizens United and Hobby Lobby. In this growing body of cases, corporate interests have been equated with individual ones. Corporations have rights to free speech and the free exercise of religion.
Now their right to make money running dirty power plants is equated with the right of human beings to breathe free of mercury pollution. Your rights, their rights—what’s the difference?
Ironically, Justice Scalia’s originalism—which last week had him arguing that if a practice could be banned in 1868, it could be banned in 2015—would have cut the other way here, if he took it seriously. For the first hundred years of US history, there were no corporations as we know them today. Corporate charters were time-bound, limited, and revocable. Only in the Gilded Age did they attain “legal personhood” as we know it today.
This is the point conservatives often miss in decrying the growth of government and regulation. Yes, government has grown well beyond anything the Founders could have imagined. But the Founders could not have imagined today’s mega-corporations either.
Peabody Energy, one of the primary backers of the current lawsuit, has an annual revenue of $6.79 billion. In 1812, the largest non-banking corporation in America, the American Fur Company, was worth about $1 million—about $17.2 million in 2015 dollars.
In other words, just one of the corporations fighting the EPA’s mercury regulations is worth 394 times the largest US corporation in existence two centuries ago. While the growth in governmental power since then, represented by regulations like the Clean Air Act, has indeed been significant, it is dwarfed by the growth in corporate power.
Michigan v. US now stands for the principle that corporate interests are equal in kind to human interests. Whether the EPA should regulate mercury depends on whether it’s cost-effective to do so, treating the costs to industry and the benefits to health equally.
Because corporations are people, right?
By: Jay Michaelson, The Daily Beast, June 29, 2015
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