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A Supreme Court Justice for the 21st Century

Memo to President Obama: We need a Supreme Court Justice and we need one now. That justice should be prepared to fight the great the legal battles of the 21st century. And those battles concern primarily wealth and race.
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US President Barack Obama speaks after touring Saft America Advanced Batteries Plant in Jacksonville, Florida February 26, 2016. / AFP / JIM WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)
US President Barack Obama speaks after touring Saft America Advanced Batteries Plant in Jacksonville, Florida February 26, 2016. / AFP / JIM WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)

Memo to President Obama: We need a Supreme Court Justice and we need one now. That justice should be prepared to fight the great the legal battles of the twenty-first century. And those battles concern primarily wealth and race.

Let's talk first about wealth. That discussion must begin with the worst Supreme Court decision of this young century, Citizens United v. FEC (2011). That opinion, which was the culmination of three decades-worth of judicial errors, declared as a matter of constitutional law that money is speech and that those who have more money have concomitantly greater rights to free speech. That was Orwellian enough, but the Court also created a corporate right of free speech that allowed groups of persons to collect and spend unlimited sums of money to influence political campaigns.

How did the Supreme Court arrive at these sorry conclusions? We must begin with Watergate and the effort to reform the political order in the 1970s. Yes, Watergate was about President Richard Nixon authorizing a criminal break-in and wiretap operation on the Democratic Party. But Watergate involved more than this act of burglary. Nixon had also raised vast sums of money from donors through a variety of questionable means and Congress legislated against those abuses.

In 1974, therefore, Congress enacted reform legislation limiting the amount of money candidates could spend on campaigns. Limit the spending, it was thought, and you limit the opportunity for undue political influence. In 1976, however, in the case of Buckley v. Valeo, the Supreme Court gutted many of these reforms. It was in Buckley v. Valeo that the Supreme Court first articulated its Orwellian formula that money equals speech.

Citizens United was the logical outcome of Buckley. In the early 2000s, Congress again enacted legislation limiting campaign contributions. And once again the United States Supreme Court gutted those restrictions. We now inhabit a toxic political universe in which plutocrats seek to control the outcomes of elections through large, unregulated donations to their favored candidates. And don't think that they don't want a return on their investment.

A new Supreme Court justice must confront this sorry mess and reverse the line of cases from Buckley to Citizens United. For surely, much of today's turmoil in the political order has its roots in money trying to buy elections.

Now, let us shift focus to the relationship of wealth and race. The United States suffers from enormous structural discrimination as a result of established patterns of wealth distribution. Consider Flint Michigan and ask yourself: Would the State of Michigan allow the water supply of a wealthy white Detroit suburb to remain tainted for months by dangerous amounts of lead?

Forty years ago, in 1973, Justice Thurgood Marshall, the first African-American to serve on the Supreme Court, wrote a dissenting opinion whose reasoning must be revisited and revived by today's Supreme Court. The case was San Antonio School District v. Rodriguez. At issue was the funding of local school districts. Texas, like most states, then and now, depended on local property tax levies as the principal source of public school funds. This method of funding was challenged as unconstitutional by a group of poor school children who argued that they were deprived of educational opportunities that wealthier school children enjoyed for no other reason than accident of birth.

While a majority of Supreme Court justices upheld the Texas scheme, what really matters is Justice Marshall's dissent. He cut right to the heart of the matter: "The Court today decides that a State may . . . vary the quality of education which it offers its children in accordance with the amount of taxable wealth located in the school districts in which they reside." Wealth, Marshall went on, must be made a suspect constitutional class, and wealth-based discrimination must be subjected to higher levels of scrutiny.

To translate into non-lawyer speech: Marshall realized that education was a fundamental right. It opens the door to other opportunities to succeed. Poor children should not be deprived of those opportunities simply because they have been born poor. By extension, he also recognized that disparities in wealth might lead to other structural injustices.

Do you want to break the school-to-prison pipeline? We would do well to embrace Justice Marshall's dissent. Do you want an America where all children have the resources to succeed whatever the circumstances of their birth? We must turn again to Justice Marshall. Do you want to address the kind of structural discrimination that led to the poisoning of Flint? A new Supreme Court justice should find ways to expand on Justice Marshall's reasoning to do that.

We need a Supreme Court justice, in other words, who can see the ways in which disparities of wealth deprive whole classes of persons of the opportunities that are rightfully and constitutionally theirs.

Now let's examine some basic issues of racial injustice. American mass incarceration is appalling and an embarrassment to the world. A new Supreme Court justice cannot, of course, legislate against mass incarceration. But she can make the constitutionality of American sentencing policies a central feature of the cases she chooses to review.

And where sentencing policy is concerned, we must return our jurisprudence to a sense of proportionality. The appropriate vehicle for that is the Eighth Amendment's "cruel and unusual punishment" clause. Chief Justice Earl Warren, writing in 1958, proposed that criminal sentencing must be measured against an "evolving standard of decency." In recent decades, our sentencing practices have not only not evolved, they have gone backwards. A new justice must be committed to scrutinizing the constitutionality of sentencing practices that have ruined the lives of countless thousands of young men and women for truly trivial offenses.

Then there is the matter of voting rights. In 2013, a 5-4 Supreme Court majority overruled congressional policy to free nine southern states from federal supervision under the Voting Rights Act. At the same time we are witnessing a number of states enacting franchise-restricting voter ID bills. A new Supreme Court justice must be committed to the ideal of an equal right to vote.

Last week's trial balloon floating the name of Nevada Governor Brian Sandoval for the Supreme Court was exactly the wrong signal to send. Sandoval is on the wrong side of the big issues -- where would he be on campaign finance reform? On voting rights? On the rights of labor? Yes, he is on the right side on gay marriage. He is on the right side of many things. But we must bear in mind that America needs a justice to address the big issues of wealth and race. And moderate Republican governors are not the place to find such justices.

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