The Supreme Court’s power has become virtually unchecked: Amending the Constitution to reverse an erroneous Supreme Court decision is nearly impossible, and Congress has proved too timid to use the other weapons the Constitution provides to check the Court, including its power to restrict the jurisdiction of the federal courts. As a result, the Supreme Court has become, in essence, a permanent constitutional convention, and a Supreme Court majority has the power to announce a new interpretation of the Constitution whenever it chooses. Such a decision will strike down all laws contrary to the new interpretation, however venerable those laws may be and however flimsy the rationale the Supreme Court majority has devised for its decision.
This all used to be widely understood on the American right. If President Nixon had used the 1974 State of the Union Address to upbraid the justices who had struck down all laws prohibiting abortion the year before, by quoting Justice Byron White’s description of the decision as an “exercise in raw judicial power,” American conservatives would likely have applauded. But when President Obama used this year’s State of the Union Address to take the Court to task for its decision in Citizens United v. Federal Election Commission by saying that it “opened the floodgates for special interests—including foreign corporations—to spend without limit in our elections,” conservatives expressed horror. Obama was widely accused of lying about the Supreme Court’s decision, which struck down as unconstitutional a federal law that had prohibited corporations from using general treasury funds to advocate expressly for the election or defeat of a candidate, and of showing lèse-majesté by criticizing the Court at the State of the Union. George W. Bush’s solicitor general Ted Olson (who is now asking the federal courts to manufacture a constitutional right to homosexual “marriage”) described Obama’s remarks as a “disappointing attack on our independent judiciary”; Sarah Palin told FOX News that Obama’s “embarrassing our Supreme Court” was going to be the “takeaway moment from the speech tonight”; and Ramesh Ponnuru opined at National Review Online that the President’s attack was “demagogic.” Obama’s remarks were still making news in early March, when Chief Justice Roberts, visiting the University of Alabama, called Obama’s criticism “very troubling.”
To be sure, Obama—who raised a record $745 million in his campaign, tossed aside his promise to abide by the campaign-finance limits imposed on publicly funded candidates, and was the beneficiary of George Soros’s largesse—is hardly a credible spokesman for campaign-finance reform. But Obama’s remarks tracked the substance of Justice John Paul Stevens’ dissent, which three other justices joined. Stevens wrote that the decision in Citizens United “would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans.” Indeed, even critics of Obama’s remarks conceded that the decision appeared to remove the limits on U.S. subsidiaries of foreign corporations making independent political expenditures, and the majority in Citizens United noted, “We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process”—meaning that a future Supreme Court majority might indeed rule the way Obama and Stevens predict.
The notion that Supreme Court justices enjoy too little deference is hard to sustain. They live in a bubble, free from sharp criticism. Lawyers practicing before the Court are, of course, greatly deferential, and justices’ appearances in public are substantially limited to such venues as bar associations and law schools, where the reception generally ranges between sycophantic and adulatory. The discomfort caused by pointed criticism of the Court may be the best hope we have of checking its power, at least until Congress is willing to start limiting the jurisdiction of the federal courts.
It is hard to see how genuine conservatives benefit from removing limits on corporate political expenditures. Generally speaking, dissident conservative candidates have been forced to rely on small individual donors because their views are distasteful to the economic elite. Such candidates have been harmed by the increasing cost of campaigns, a problem that Citizens United greatly exacerbates. A Pat Buchanan or a Ron Paul would benefit little from the corporate expenditures the decision permits. But it is easy to imagine multinational corporations using their economic power to destroy candidates who question free trade, Wall Street firms banding together against candidates promoting financial regulation, banks propped up by the Federal Reserve seeking to throttle candidates wanting to audit the Fed, businesses using immigrant labor uniting against candidates who want to restrict immigration, and even firms in Silicon Valley seeking to punish candidates who oppose “gay marriage.” It is very unlikely that Justice Stevens was motivated by these concerns, but his dissent was correct: “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”
This article first appeared in the May 2010 issue of Chronicles: A Magazine of American Culture.