OWS Protesters at the Supreme Court: There’s a Lot To Be Mad About

The law, lawyers, and the court.
Oct. 17 2011 7:12 PM

From OWS to OSCOTUS

As Occupy Wall Street protesters look to the Supreme Court, they’ll find more to be outraged about than the Citizens United case.

Cornel West on Oct. 7
Cornel West

Photo by Frederick J. Brown/AFP/Getty Images

The protesters at Occupy Wall Street and all the mini-occupations that have sprung up around the country in recent days have started to connect two important dots. Blaming Congress for the corporate takeover of American democracy is only half the fun; blaming the Supreme Court is almost better. So when Cornel West was arrested Sunday at an impromptu protest on the steps of the U.S. Supreme Court, his message was a simple one that may be starting to resonate: If you don’t like big corporations buying and selling your government, you may want to go talk to the five-justice majority who gave us the Citizens United decision.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

There is only one small problem with this argument. The corporate takeover of government predates the Citizens United ruling, issued in 2010, by many, many years. Moreover, while the ruling certainly opened up the possibility that future elections will be affected by the flood of corporate money into political campaigns, most empirical studies of the 2010 elections still show that the actual impact of Citizens United was actually quite limited. Many of the worst aspects of our money-saturated campaigns (like the role of 501(c)4’s) were already legal before Citizens United, and the holding in the case didn’t change them. The stuff you want to really worry about with big money and elections, such as the failure to disclose who you’re buying, is unaffected by Citizens United. Things may well get much uglier in future elections. But they’d have been ugly with or without the court’s intercession.

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So if you want to get mad at the Supreme Court for the role it has played in insulating and empowering American corporations, realize that Citizens United is largely a symbolic target. It is not the most important aspect of the Roberts court and its affinity for big business. Step back further: If you want to get mad about the “minimalist” legal jujitsu that affords corporations the same free speech rights as people, you’re in good company. Former Sen. Russ Feingold of Wisconsin concurs. Don’t forget: Congress passed campaign finance reform; it was the humble, minimalist Supreme Court that struck it down.

Now step back even further still: If you want to get mad at the elaborate fraud that brought the issue of “corporate personhood” to the high court in the first instance, I’m still right there with you. But there is so much better stuff to be angry about. The legal fiction of speech rights for corporations is a paper tiger that draws attention away from the real sins of the Roberts court: a systematic dismantling of existing legal protections for women, workers, the environment, minorities and the disenfranchised. Protesters at OWS who care about growing inequality need look no further than last term at the high court (i.e., not the Citizens United term) to see what happens when—just for instance—one’s right to sue AT&T, one’s ability to being a class action against Wal-Mart, and one’s ability to hold an investment management fund responsible for its lies, are all eroded by a sweep of the court’s pen.

Of course, if you want to focus the blame somewhere for big business growing ever richer at your expense, by all means start with Citizens United. But trust me, that’s not even the interesting part of the story. The paradox is that the little cases we’ve all missed will hurt the little guy far more. Either way, if OWS expands to become an attack on the legitimacy of the high court, it may have real implications in a term that is already shaping up to be one of the most momentous in recent memory.

So what is the Supreme Court going to do about it? Recall that Citizens United was a surprisingly unpopular decision, even when it came down, and that nobody was more surprised at that outcome than the court itself. Recall that it started as a tiny little petit four of a case about a bad movie-hit on Hillary Clinton. Recall also that it was the court itself that decided to have the case rebriefed and reargued to reach beyond the narrow facts off the case and strike down provisions of the McCain-Feingold campaign finance law. The court seemed blind to the fact that giving big corporations a big golden ticket just as the economy was circling the drain was plain old bad timing and—immersed as the majority must have been in arcane questions about free speech—the court was blindsided by polls that showed that 85 percent of the public disliked the outcome of the case and 65 percent “strongly” opposed it.

Those numbers reflected bipartisan agreement at that time that the court had simply blown it. It’s hardly a surprise, then, that as the economy stagnates, and the gap between rich and poor expands, that the public still bears a grudge. Polls taken earlier this month show that the high court’s approval rating is at a near-historic low, and the 46 percent approval rating has dropped by 15 points in two years. So some court-watchers are suggesting, not inconceivably, that Citizens United is partly to blame. I’m not as comfortable tacking huge polling swings to single cases. But I’m not above saying there more be some correlation here.

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