It is Time to Take Back the Courts

One of the more striking moments in President Obama's State of the Union address was his unusual rebuke of the Supreme Court's recent decision in Citizens United v. Federal Election Commission. Citing deference to separation of powers, President Obama took the Court to task for reversing a century of law that will open the floodgates for special interests and for-profit corporations to spend money in our elections. But no presidential scolding is as momentous or striking as the degree to which the five conservative justices bent over backwards to reach a broad decision that overturns key precedents and creates a major constitutional shift in campaign finance law. In a stunning display of judicial overreach, the conservative justices abruptly broke with long-settled precedent in order to fundamentally change the rules of the game in favor of big business.

The conservative justices took it upon themselves to broaden the Citizens United case in order to issue a sweeping ruling upending our campaign finance laws. The narrow issue presented to the court was whether Citizens United, a non-profit corporation, had the right to use its general treasury funds to pay for broadcasts of its movie during the 30-day period before an election. Citizens United itself, early in the litigation, abandoned its broad facial challenge to the constitutionality of the corporate expenditure restriction. Nevertheless, in a highly unorthodox move, the court invited reargument on the bold, broad question of whether to overrule two earlier Supreme Court decsions upholding restrictions on corporate electioneering. As Justice Stevens wrote in dissent, "Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law."

Taking it upon themselves to rewrite a century of campaign finance law, the five conservative justices abandoned those principles of judicial minimalism and restraint which they so righteously tout in confirmation hearings and public speeches. They ignored the principles of deciding cases on narrow grounds and avoiding constitutional questions where possible, operating, in Justice Stevens' words, "with a sledge hammer rather than a scalpel" to strike down one of Congress' most significant efforts to regulate the role of big business in electoral politics. And, perhaps most chillingly, the conservative justices ran roughshod over the principle of stare decisis, going out of their way to overturn a 20-year old Supreme Court decision and abandoning a legal position Chief Justice Roberts had staked out just a couple of years ago.

Look no further than Chief Justice Roberts' concurrence in Citizens United for the harbinger of what's to come. The chief justice wrote separately to try to validate the majority's abandonment of the principles of stare decisis and willingness to overturn settled doctrine. Roberts' opinion lays the framework for a long-term justification of his departure from his position during his confirmation hearing. At that hearing, Roberts eloquently promised to adhere to long-standing precedent and attested to his respect for the principle of stare decisis. Now however as chief justice, he appears willing to tear down generations-old laws, no matter the principle or practical effect of doing so. Citizens United throws into disarray the regulatory regimes of a whopping 24 states, each of which has some form of corporate expenditure restriction on the books, less than a year before an election and, in some states, just a month or two before the primaries.

A somber lesson of Citizens United is that, given the current composition of the court, "We the People" are confined to a court that is happy to invite multi-national corporations to take over our democratic process and yet which seems uninterested in sticking its neck out to otherwise enhance democratic participation or protect individuals' voting rights.

Kudos to the President for reprimanding the court and giving voice to the frustration felt by so many Americans in the wake of Citizens United. But let's remember that this decision is lasting evidence of the conservative movement's decades-long effort to pack the court with judges more sympathetic to business interests than to everyday Americans -- and Chief Justice Roberts is likely to be around for years, if not decades, longer than President Obama. Noting the court's departure from its previous decisions, Justice Stevens wrote in his dissent, "The only relevant thing that has changed since Austin and McConnell is the composition of this Court."

I hope this decision serves as a wake-up call to progressives who have allowed judicial nominations to sit on the back burner while conservatives pack the court, and to the administration, which has not treated judicial nominations as a top priority. President Obama should step up his commitment to nominating wise young judges who can change the jurisprudential conversation -- and progressives need look no further than Citizens United to see what happens if we don't pay attention to judicial selection and work to help confirm those nominees who will uphold our core constitutional values.