"This is purely a Bush v. Gore-type grab." - John Dean on "Live from the Left Coast", KPFK ~ 12:08 PST today.
In my previous diary, "Constitutional Beanball" I went to some lengths to describe some contrasting views of how political actors seek to radically change the constitutional order. The reason for doing so was to (a) better understand what was happening with the Supreme Court decision in Citizens United vs. FEC and (b) better understand what is wrong with "liberal" (that is, both actually and apparently liberal) advocates supporting the ruling.
As I said after the oral arguments, I don't have any strong objection to the Court's ruling that the restrictions placed on showing Hillary: the Movie were unconstitutional. Such a holding would be quite defensible even under a legal framework that tried to balance First Amendment interests and the importance of fair elections. The real question was whether the case would be decided in narrow or broad terms, and alas it's very much the latter. The Court overruled both a 20-year precedent permitting greater restrictions on corporate speech and parts of a more recent ruling upholding the McCain-Feingold Act, and has essentially held that for-profit corporations have the same First Amendment rights as individuals.
On a related note, it seems worth noting again that Chief Justice Roberts's purported "minimalism" -- so often touted by his defenders, including liberals who should know better -- is an empty fraud. At least in this case -- unlike previous campaign finance rulings -- the Court was willing to overturn precedents explicitly. But, certainly, this should serve as a reminder that it's farcical to claim that modern judicial conservatives stand for substantive "minimalism" or "judicial restraint."
The central line of argument in Justice Kennedy's majority opinion -- that the First Amendment does not permit distinctions based on the identity of the speaker -- is superficially attractive. The problem is, there's no reason to believe that any of the justices believe it. In addition to the examples in Justice Stevens' superb dissent, consider Morse v. Frederick, a decision denying a free speech claim which all 5 of the justices in today's majority also joined. Obviously. Nobody would dispute that an ordinary citizen who unfurled a "Bong Hits 4 Jesus" banner could be sanctioned by the state; the punishment was upheld solely based on Frederick's identity as a student, which meant that his free speech rights had to be balanced against a school's interest in preventing drug use (and could be denied even if there was no plausible argument that his speech actually would promote drug use). If this kind of balancing test is permissible, surely Congress should be permitted to place some weight on the importance of fair elections when considering the First Amendment rights of for-profit corporations.
This brief survey hits a number of high points in terms of basic contradictions between (a) the purported judicial minimalism of Roberts in particular, (b) the purported general abhorrence of "judicial activism" by conservatives in general, (c) the purported respect for precedent by conservatives in general and the actual practice of conservative justices when they can get away with it. It also takes note of the conservative's eager embrace of limiting free speech for (potentially) doper students, but not for cigarette companies, corporate polluters and the like. As Scott notes, this is not mere minor carping, this decision vividly gives the lie to the claim that "modern judicial conservatives stand for substantive 'minimalism' or 'judicial restraint'"--which is, in essence, the core argument that conservatives have been making ever since they blew their tops over Brown v. Education 56 years ago.
The conclusion here is obvious: if substantive "minimalism" and "judicial restraint" weren't the issues, then obviously racism was (I'm shocked! Shocked!) What's more, the entire conservative legal movement is based on lies. This is clearly an element in what I call "constitutional beanball", in contrast to Tushnet's concept of "constitutional hardball." Tushnet's concept essentially presumes good faith disagreement, albeit between (at least potentially) irreconcilable viewpoints. Beanball encompasses-but does not require-cases in which people are bad-faith actors, liars, cheaters, fraudsters, law-breakers, etc.
As I noted in another diary earlier today, the potential amounts of money involved are enormous, on the order of almost 30,000 times the amount spent by MoveOn.org in the 2008 election. The sheer magnitude of that much money alone is sufficient to make it obvious that a dramatic transformation in American governance will almost certainly result directly from this decision, unless significant counter-measures are taken. This fact, combined with the multiple forms of duplicity involved in the case on the part of the conservative majority of justices is sufficient to qualify it as a case of "constitutional beanball."
Thus endeth part (a) of this diary. But what if they're right, anyway? That's the subject of part (b), for which I turn to a look at Glenn Greenwald's arguments.
The Context of No Context
In "What the Supreme Court got right", Greenwald is utterly unconcerned with any of issues I've raised about the arbitrary, capricious and downright bad faith behavior of the conservative justices. Instead he focuses primarily not just on things he thinks the justices got right, but also on alleged preconceptions and misconceptions of critics-though he does preface this with statements about troubling aspects of the case, particularly the pernicious influences of corporate money on politics.
I want to begin by examining several of the most common reactions among critics of this decision, none of which seems persuasive to me. Critics emphasize that the Court's ruling will produce very bad outcomes: primarily that it will severely exacerbate the problem of corporate influence in our democracy. Even if this is true, it's not really relevant. Either the First Amendment allows these speech restrictions or it doesn't. In general, a law that violates the Constitution can't be upheld because the law produces good outcomes (or because its invalidation would produce bad outcomes). (Emphasis added)
The bolded passage above suggests a Platonic view of the Constitution, as existing in an ethereal realm of its own, entirely divorced from the people who wrote it, as well as those who shaped the common law tradition in which it arose, and all those who have come afterwards. This view is, frankly, entirely absurd, and I doubt very much that Greenwald actually subscribes to it as such. But I underscore it precisely because it contrasts so sharply with the political and historical realism of Tushnet, Balkin and Levinson, and the insights they provide into the deeply contested nature of the political order, of which the First Amendment is clearly a (very important) part.
In fact, the historical reality-as already alluded to above-is that limits on free speech via balancing tests and the like not only have a very long history in Anglo-American law, but that are still upheld by the very same justices who cast them completely aside in this case. Thus, from a realist perspective, the exact opposite of what Greenwald says is true: Either balancing tests support considerations of whether bad outcomes will result, or they don't-and virtually everyone, including the justices who decided this case-agrees that balancing tests do support such considerations. The question is-how and why. Of course, Greenwald is free to take an absolutist view of the First Amendment, in which no such outside considerations play any part. But this is not the basis on which this case was decided, as there is not a single "Free Speech absolutist" on the Court. Personally, I think that such absolutism is mistaken, but that it's a good idea to have at least one absolutist on the Court, just to push an important point of view, and to help keep the other justices honest. So in essence, I'm critical of, but not necessarily hostile to this viewpoint. I am quite hostile to the fake adoption of this viewpoint for ulterior motives.
Greenwald continues:
One of the central lessons of the Bush era should have been that illegal or unconstitutional actions -- warrantless eavesdropping, torture, unilateral Presidential programs -- can't be justified because of the allegedly good results they produce (Protecting us from the Terrorists). The "rule of law" means we faithfully apply it in ways that produce outcomes we like and outcomes we don't like.
While this is certainly true on the face of it, it's misleading when linked to Greenwald's seemingly ahistorical claim about the First Amendments' Platonic status. Rather, this statement is most illuminating when read in the context of Balkin & Levinson's discussion of Type I and Type III crises-or even moreso in the context of my concept of constitutional beanball. Perhaps the best way of knowing that you're not engaged in constitutional beanball is if the position you're advocating foreseeably entails certain significant outcomes that you would not substantively advocate for-because this is strong (though not infallible) indication that you're not making a bad faith argument.
Put another way, taken as a whole what Greenwald is saying in the passages quoted so far seems fair enough as a caution against premature judgment, but ill-advised as a prohibition against considering outcomes. It matters very much how one goes about considering outcomes in determining whether a judicial decision (or legal opinion) is right or wrong. It's good to be prudent, bad to be prohibitionist.
Thus I would agree entirely with Glenn's next statement, with the inclusion of the modification in brackets:
Denouncing court rulings [simply] because they invalidate laws one likes is what the Right often does (see how they reflexively and immediately protest every state court ruling invaliding opposite-sex-only marriage laws without bothering to even read about the binding precedents), and that behavior is irrational in the extreme.
But I would find the next sentence headed right back to questionable Platonic territory:
If the Constitution or other laws bar the government action in question, then that's the end of the inquiry; whether those actions produce good results is really not germane.
If some result really is very bad, one should be cautious in jumping to conclusions denouncing it out of hand simply for that reason. But if the result was reached in bad faith, then that's good reason to denounce the decision process, and also a strong indicator that the Constitution or other laws are contestable at best, if not clearly contradictory to what the bad-faith deciders allege.
Greenwald is also off-base in arguing that further empowering corporations couldn't possibly make things any worse:
I'm also quite skeptical of the apocalyptic claims about how this decision will radically transform and subvert our democracy by empowering corporate control over the political process. My skepticism is due to one principal fact: I really don't see how things can get much worse in that regard. The reality is that our political institutions are already completely beholden to and controlled by large corporate interests (Dick Durbin: "banks own" the Congress).
I suppose Greenwald's outlook is understandable, since he spends so much time criticizing the results of the levels of corruption that already exist. But it's easy to understand how they could be much, much worse. There could be no one in the Senate to express Durbins views. And no one in the House, either. Or in any state legislature in the land, or on any city council or country board of commissioners. It could be even worse than that. There could be no one on any of those bodies who could even understand Durbin's criticism. It can always get much, much worse, and Greenwald would almost certainly realize this if he were looking at things through a realistic historical perspective such as that which Balkin and Levinson articulate.
This is hardly a systematic refutation of Greenwald's points. But it is indicative of what I see as the general problem with his viewpoint--and that of others who share it, or go even farther in the direction of ahistorical, acontextual support for the "free speech" argument in favor of the Court's ruling. These positions sound credible in context of no context, but are like unto the pavement of the road to Hell for those who are not blind to history, or to the road on which we are now heading.
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