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.
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.
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.
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.
My friend Robert Barnes at the Washington Post writes about the paradox of a high court being clobbered by the left and the right at the same instant. Just as Newt Gingrich is proposing that the court be made subordinate to, well, him, the left seems to be waking up the fact that “equal justice under the law” comes a lot more readily if you happen to be named Mr. Wal-Mart or Sir AT&T. Barnes notes that while its always true that the court gets special attention in election years, “somewhat surprisingly for a court that is moving to the right and where Republican appointees hold sway, the heavy fire is coming from those who want the GOP nomination.” How can the court be so conservative, he wonders, if all the conservatives think it’s not conservative enough?
One possible answer is that the Supreme Court has always been used as a dog whistle on the right to talk about election issues that matter deeply to social conservatives, including abortion, religion, and race. Criticism of the “activist” or “elitist” courts has become such a staple of GOP barnstorming that it almost doesn’t matter that the renegade activist court has recently upheld partial-birth abortion bans and allowed tax dollars to go to parochial schools. In other words, when Newt Gingrich or Rick Perry screeches about the court, they’re just reusing a Meese-era talking point. Nothing to see here.
Barnes also explores the theory that, because it is made up of four liberals, four conservatives and Anthony Kennedy, the court will always be disappointing someone. We all hate the court because we all just want Kennedy to pick a side. This too has some merit. But here’s one more explanation: The court now represents the overlap—that sweet spot in this brilliant Venn diagram—where the complaints of the Tea Partiers and the Occupy Wall Streeters can be focused on one spot. Complaints about the court perfectly echo blogger James Sinclair’s observation that the left and the right have a common enemy. The left hates big corporations, the right hates big government, and both sides forget that the problem is big corporations lobbying big government to enact laws favorable to big corporations.
Yes, it’s an oversimplification. But it does explain why public sentiment may be beginning to harden against the Supreme Court in general and Citizens United in particular. From a purely symbolic standpoint, Citizens United is a powerful statement: Big government is now in the control of big money. In an act of reverse statesmanship that still boggles the mind, the high court, with Citizens United briefly united both sides of a very polarized electorate around the idea that the court let big business to buy Congress.
That makes the upcoming term doubly interesting now. The court will face an array of questions about whether government is too crazy powerful: Can the cops stick a GPS device on your car without a warrant? Can the feds force Arizona out of the immigration-law game? Can the government force you to buy health insurance if you are hellbent on a slow and painful death? It will also face a host of questions about whether corporations can further immunize themselves against ordinary people: Can consumers sue credit repair companies for excessive fees? Can investors bring securities fraud suits for insider trading? Can oil and gas workers injured on the job sue to receive workers’ compensation? And because many of these cases scramble right/left ideology in much the way Sinclair’s Venn diagram does, the court may find itself in a minefield of debates it would rather sit out, debates it’s just agreed to referee this term.
If Americans begin to suspect that the Roberts court has been complicit in the conspiracy to make ordinary Americans less safe, less free, and less protected by the law—just as big corporations have become bigger, richer, and more immune from suit—there may also be a few more arrests on the steps of the court in coming months. As my friend Barry Friedman has argued, the court is hardly immune from this type of popular backlash and may conform its behavior this year in an effort to quiet it. The last time we saw the American people revolt against the court, it was in response to the “nine old men” who couldn’t do quite enough to gild the Gilded Age. The more people learn about what lurks under Citizens United, the more frustrated they may become.
I confess that I’m not quite sure how any of that will play out in any one case this term, though it may mean the court decides not to add the most controversial case about Obama’s health care law to this year’s docket, if it can kick things down the road until the American people have a chance to cool off. But if Americans become—and stay—focused on some of the ways the courts have actually contributed to their problems in recent years, I have no doubt the Supreme Court will sit up and take notice, and maybe just cool off a bit as well.
Dahlia Lithwick writes about the courts and the law for Slate.