Sam Alito wrote in The Wall Street Journal last week that:
“No provision in the Constitution gives them [Congress] the authority to regulate the Supreme Court — period.”
He’s deeply, profoundly, and constitutionally wrong: in fact, the constitution requires Congress to regulate the Supreme Court. I’ll get to that in a second, but first the important stuff: Barbie!
Louise and I went to see the new Barbie movie Friday afternoon. Sitting in the theater, we both nearly choked on our popcorn when, in the first few minutes of the movie, one of the Barbies said:
“In Barbieland, corporations are not people, and money is not considered protected free speech!”
I suppose it shouldn’t surprise me that Barbie has more common sense than Sam Alito, but there it is.
Alito, of course, provided a tie-breaking vote on Citizens United in 2010, the bizarre Supreme Court decision that fully legalized political bribery, handing the American political system to the billionaires who helped pack him and other rightwing justices onto the Court in the first place.
In the Citizens United decision, the five Republicans then on the Court doubled-down on earlier pronouncements that laid its foundation. In 1976, in Buckley v Valeo, the Court — for the first time in the history of America or any other developed nation — ruled that it would no longer be considered bribery when a morbidly rich person poured so much cash over a politician that s/he entirely parrots their lines and votes their interests.
Their rationale was that the First Amendment protects free speech and, because your “free speech” can’t be heard without a lot of money to buy advertising time on TV, etc., cash can now be considered the same thing as speech.
In his dissent, Justice Byron White cut right to the chase about the Court’s bizarre legalization of political bribery and its potential consequences:
“The act of giving money to political candidates, however, may have illegal or other undesirable consequences: it may be used to secure the express or tacit understanding that the giver will enjoy political favor if the candidate is elected.”
Justice Marshall similarly dissented, writing:
“[T]he perception that personal wealth wins elections may … undermine public confidence in the integrity of the electoral process.”
While I’ve never heard the money I carry in my pocket talk to me, that was the decision of the Court and it stands to this day: money is now “free speech.” This explains why every elected Republican who depends on the Koch network and other fossil fuel billionaires for campaign cash still denies our climate emergency even exists and refuses to do anything about it.
Two years later, in a decision (First National Bank v Bellotti) written by the infamous rightwing hack and tobacco shill Lewis Powell himself, the Court ruled that corporations, too, were entitled to legally bribe politicians because they corporations are “persons” and thus protected by the human rights protections of the Bill of Rights, including the First Amendment right of free speech (now apparently known as “free money for politicians”).
That was too much even for Republican William Rehnquist, who wrote the dissent, saying:
“A State grants to a business corporation the blessings of potentially perpetual life and limited liability to enhance its efficiency as an economic entity. It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere. Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist.”
Rehnquist added in footnote 6 to his dissent:
“[T]he interest of Massachusetts and the many other States which have restricted corporate political activity is not one of equalizing the resources of opposing candidates or opposing positions, but rather of preventing institutions which have been permitted to amass wealth as a result of special advantages extended by the State for certain economic purposes from using that wealth to acquire an unfair advantage in the political process.”
Nonetheless, the Court’s majority opinion stood and just two years later Ronald Reagan floated into the White House on a river of oil money, leading him to reverse Jimmy Carter’s policies to make America energy independent, end Carter’s Solar Bank that would have had 20 percent of America’s electricity coming from solar power by the year 2000, and remove Carter’s solar panels from the roof of the White House.
When the Court tripled down on these two freakish distortions of American bribery law in its 2010 Citizens United decision, Justice John Paul Stevens called them out:
“The Court’s blinkered and aphoristic approach to the First Amendment will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process.”
He added, pointing out that the case was essentially manufactured and should never have even been taken up by the Court:
“The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.”
And, indeed, it has. As former President Jimmy Carter told me seven years ago on my radio/TV program:
“It [Citizens United] violates the essence of what made America a great country in its political system. Now it’s just an oligarchy, with unlimited political bribery being the essence of getting the nominations for president or to elect the president. … So now we’ve just seen a complete subversion of our political system as a payoff to major contributors, who want and expect and sometimes get favors for themselves after the election’s over.”
Now comes Sam Alito, without whose vote Citizens United wouldn’t have turned our elections over to America’s rightwing billionaires, saying that if he and Thomas want to take travel and gifts from billionaires with business before the Court; if Chief Justice Roberts’ wife wants to take more than $10 million from law firms that will appear before the Court; if billionaires with interests before the court want to help Neal Gorsuch sell his property in a sweetheart deal; then that’s just fine.
As noted, Alito came right out and used the word “regulate” to describe what he believes Congress cannot do to the Court.
Apparently, he never read the Constitution that he pretends to interpret and enforce. For there it is, for all to see, right smack dab in the middle of Article III, the part of the Constitution that creates the Supreme Court:
“[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
One of those regulations, in fact, was Congress creating an eighth seat on the Court — which Alito currently occupies — with the Judiciary Act of 1837 that also created the eighth and ninth Circuit Courts. (Today there are 13 Circuit Courts, strongly arguing for 13 justices on the Supreme Court, as historically each justice had oversight over one of the Circuit Courts and now most are doubled-up.)
Congress has already regulated the Supreme Court numerous times, including imposing a code of ethics on them that they are simply choosing to ignore.
In 1940, Congress passed ethics rules for district courts, but in 1974 they were updated to include all federal justices and judges, which includes the Supreme Court. The law [28 U.S. Code § 455 – Disqualification of justice, judge, or magistrate judge] now reads (with my annotations in [brackets]):
“(a) Any [“Any” means “any,” including SCOTUS justices] justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
“(b) He shall also disqualify himself in the following circumstances:
“(1) Where he has a personal bias or prejudice concerning a party [like the billionaires supporting Kavanaugh, Alito, and Thomas, although none have so far recused themselves in these cases], or personal knowledge of disputed evidentiary facts concerning the proceeding;
“(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it [because of this law, until she joined the Supreme Court Amy Coney Barrett routinely recused herself from cases involving fossil fuels because her father spent most of his career as one of Shell Oil’s top attorneys, but now she refuses to recuse herself];
“(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy [when Roberts was employed by Reagan in the DOJ, he wrote extensively about how to overturn Roe v Wade, as I detail in The Hidden History of the Supreme Court and the Betrayal of America, and Amy Coney Barrett was a party to lobbying and PR efforts by anti-abortion groups];
“(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding [consider John Roberts’ wife taking over $10 million for placing attorneys with law firms who have business before the Court]…”
Because the Court has assiduously ignored 28 U.S. Code § 455, Congress is working on a new bill to explicitly regulate the justices’ behavior; it passed out of the Senate Judiciary Committee last week over the objection of every single Republican senator. It will die in the House, but it’s a good exercise for a law that should be among the first rolled out if in 2025 in Democrats can reclaim the House (and hold the Senate and White House).
Republican Senators, of course, don’t want the legalized bribery gravy train to ever stop, and if billionaire-bought-off conflicted justices can’t rule because these sorts of issues force the recusal of Thomas, Alito, and Roberts (at least), then Citizens United itself might be reversed. Not to mention their gutting of the EPA’s ability to regulate fossil fuels. Or the federal government’s ability to regulate American wetlands. Etc.
When Barbie has more integrity than six Republican members of the US Supreme Court, you know American democracy is in a crisis.
It’s time for Congress and the Department of Justice to do their jobs and force the “corrupt six” Supreme Court justices to follow the law.
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