The Supreme Paradox: When the Court Overrides Congress

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The paradox of the United States Supreme Court is that, from one perspective, it is a traditional judicial institution deciding individual cases. But from another perspective, it makes broad value choices in the name of constitutional interpretation; strikes down acts of democratically elected legislatures; and issues rules with impact on our national life as great or greater than Acts of Congress.

This paradox is vividly reflected in the Court's decision in Citizens United v. Federal Election Commission which, on First Amendment grounds, invalidated Congressional limits on independent expenditures by corporations and unions in support of candidates (and by implication limits on such expenditures in about half the States). By a 5-4 vote, the Court explicitly overruled two of its own recent cases and blew away years of bi-partisan Congressional effort to address the problem of money in politics.

Citizens United is just the latest piece in the historic puzzle of judicial review when the court invokes the broad, majestic phrases of the Constitution--protecting free speech, prohibiting establishment of religion, securing due process, requiring equal protection, banning cruel and unusual punishment--and fills in constitutional content with its own value choices to invalidate actions of other governmental institutions.

As many scholars have written, these choices by individual justices can result from a combination of factors: law, facts, personal history, current personality, ideology, court dynamics and assessments of a decision's practical impact. One thing is for sure: they are not wholly mandated by abstract principles, crystal clear history and the unambiguous holdings of past cases (though the Court always wants it to appear that way).

The Court may have a wide range of alternatives in any particular case--from declining to reach the ultimate merits, to a statutory rather than constitutional disposition, to a very narrow constitutional result tied closely to the facts, to a sweeping constitutional rule. And, depending on the desired result, "conservatives" can be "judicial activists" (as in Citizens United) and "liberals" can be "judicially restrained", or vice versa--or "conservatives" can use the First Amendment to deregulate restrictions on corporations and unions (as in Citizens United) and liberals can limit the First Amendment's reach to allow election spending limitations.

Present-day nominees to the Court, of course, are now forced in Congressional testimony solemnly to swear that they follow but don't make the law, a rhetorical trope taken to absurd extremes before the Judiciary Committee by recent circuit judges Roberts, Alito and Sotomayor. But every knowledgeable observer of the Court knows this is not true--that the Supremes, of course, make new constitutional law all the time.

The fiction of the confirmation hearing is, of course, reinforced by the symbols of the Court itself to set it apart from the more political executive and congressional branches: the marble temple, the hushed, high-ceilinged court-room, the raised bench, the judicial robes. And, of course, the opinions: heavy in verbiage, precedent and complex argumentation; invoking principle and, at times, avoiding real reasons for decisions; impenetrable to the average citizen despite a powerful and practical impact on our national life akin to actions from the politically accountable executive and legislature. The fictions, and symbols and opinions, are all in the service of preserving the "legitimacy" of the Court itself.

I mention all this because the opinions in Citizens United--all 190 plus pages of them--would baffle our citizenry even though its impact on their politics is likely to be important (some think extremely important) . In its bold (bald?) value choices, surrounded by a deep breathing judicial opinion, it reflects the supreme paradox of the Court brushing aside legislative choices and rendering a sweeping decision, with confusing signals to the American people.

In declaring unconstitutional Congress' limits on independent expenditures advocating the election or defeat of a candidate by unions and corporations in a brief period (30 or 60 days) before an election, the Court majority (Justices Kennedy, Alito, Scalia, Thomas and the Chief Justice) stated in essence:

--Political speech is at the core of the First Amendment.
--Curbs on such speech can only be sustained by a compelling state interest.
--Corporations and unions have the same free speech rights as individuals.
--The Congressional interests--in protecting against corruption, against distortion of the political process and against use of corporate or union funds for political purposes not approved by shareholders or members--were not sufficiently compelling to justify the free speech restriction on corporations and unions.

The majority left untouched Congressional prohibitions on direct corporate or union contributions to candidates because, as decided in 1976 in Buckley v. Valeo, such contributions constituted a real threat of quid pro quo corruption.

In a lengthy dissent, Justice Stevens (writing for himself and Justices Breyer, Ginsburg and Sotomayor) offers two critiques of the majority position.

First, as a procedural matter, the court never should have reached the merits of the case because: Citizens United didn't raise the wholesale attack in its request for Supreme Court review; this was a facial challenge (no factual record in the judicial proceedings below) which the Court disfavors; there were narrower grounds for decision (and the court should always use such grounds to avoid broad constitutional decisions); and the doctrine of stare decisis (respect for precedent) should prevent the Court from overturning key cases decided in 1990 and 2002. As Justice Stevens wrote, "the only thing that has changed [since those decisions] is the composition of the court."

Second, on the merits, Justice Stevens argues that the Court for over a century has not equated corporations (and the unions) with individuals in the election law context--and has limited free speech rights in many other contexts such as schools, prisons, the military and the civil service. He then argues that the core legislative interests--anti-corruption and anti-distortion--are compelling. In any event, the majority cannot credibly argue that they are not because Congress developed a record of more than 100,000 pages when it passed the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold) and the Court, in dealing with a facial (not "applied") challenge, has no judicial record and is simply speculating about the facts. (Stevens finds no evidence that this was an "incumbent's protection" act.)

Presented by

Ben W. Heineman Jr.

Ben Heineman Jr. is is a senior fellow at the Belfer Center for Science and International Affairs, in Harvard's Kennedy School of Government, and at the Harvard Law School's Program on Corporate Governance. He is the author of High Performance With High Integrity.

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