Posted Monday, June 27, 2011, at 5:48 PM
ASPEN -- It's not fun to watch someone analyze a mistake she could have prevented. In one of the first sessions here at the Aspen Ideas Festival, Jeffrey Rosen peppered Sandra Day O'Connor with questions about the campaign finance decisions that have come down from the Supreme Court since she left it in 2005. She answered frankly, keeping a poker face, as she argued that the court -- in majorities that include her successor, Sam Alito -- was getting it wrong.
She apologized to Rosen for not having read Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett
, today's decision that struck down part of a public financing law in O'Connor's home state. Did she think this was an open constitutional question?
"I hadn't thought so," she said. "Many states have given some of that. If I'm not mistaken, West Virginia has given some form of this... this is going to come as a shock to some states that have adopted some aspect of public funding for campaigns."
Rosen pressed her on the impact of Citizens United . As she's said before, she's not a fan.
" Citizens United was a concern to me because what it did was recognize corporations as fully recognized as persons under the first Amendment," she said. "I very much doubt that the framers of the Constitution, when they wrote the first Amendment" -- she rustled into her purse to get a copy of the document -- "I don't think they had corporations in mind, to tell the truth."
O'Connor looked down at her copy of the Constitution and read the amendment.
"Do you think they were talking about corporations there, or about us as individuals?"
It was a rhetorical question, one that it's now up to Sam Alito to answer.
UPDATE: The first question to O'Connor was about "stories in the press" about the financial relationships of judges. It was a veiled reference to reports that Clarence Thomas has received gifts
from Harlan Crow. O'Connor kept her answer as ambiguous as the question.
If that's the allegation, that certainly could be pursued.