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Recent Supreme Court Opinions Show Political Leanings

From time to time Supreme Court decisions involving the First Amendment arise and should be appropriate for this blog.  In the last several months two Supreme Court decisions have caused constitutional scholars to consider the Court's current trend in interpreting the first Amendment. The first case was decided in the fall of 2009 in the matter of  Citizens United vs. Federal Election Commission.  This case extended First Amendment rights to corporations, allowing them to spend unlimited amounts of money on political campaign advertising. The second case,  Salazar vs. Bouno  (Mohave Cross case), abrogated the First Amendment distinction between church and state.  In both of these cases the Supreme Court through the authorship of Justice Kennedy (the supposed swing vote on the Court) manufactured the cases in such a way in order to allow them to reach their predetermined conclusions.  I think we can only look for more of the same from the "Fabulous Five" (Justices Kennedy, Roberts, Alito, Scalia and Thomas).   In  Citizens United, Justice Kennedy writing for the majority ruled that corporations are no longer restricted in the role they may play in political campaign advertising.  The case found its way to the Supreme Court as a result of an opinion from the lower court declaring that Citizens United (a political action committee PAC) would not be permitted to run a certain movie called "Hillary: The Movie" on Direct TV, aimed at discrediting Hillary Clinton then a presidential candidate.  The lower court ruled that airing of this film within 30 days of the primary election was a violation of the Federal Election Campaign law of 1971, and a subsequent revision in the form of the McCain Feingold Amendment prohibiting corporations from trying to influence a campaign with their immense resources.   It is important to note that there was never an issue regarding running the film other than the law said that it could not be run within 30 days of a primary or 60 days of a general election.  So, the only issue before the court was whether the lower court had violated United's first amendment rights by placing limitation on when this film could be aired. The Supremes overruled the lower court and ruled that corporate funding of independent political broadcast in candidate elections cannot be limited under the First Amendment.  The court found that corporations should not be treated any differently than individuals when it comes to making contributions to political campaigns.  That's right -  people and corporations must be treated the same.  Flesh and blood, breathing, eating people like you and I  are no different then let's say, Goldman Sachs, Halliburton or any other multi-billion corporation with resources to influence the outcome of an important political campaign.  Have you already noticed the increase in the number of TV spots for the upcoming primary?  You haven't seen anything yet - wait till the summer and see how much political advertising occurs and the nature of its content.  I cannot imagine that our founding fathers, the guys who brought us the American Revolution; Ben Franklin, John Adams, and James Madison could have ever imagined the First Amendment would be used by big and powerfully funded business interests like the corporations who financed Citizen's United  to   influence a campaign. Justice Stevens writing for the dissenters said, this 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".  He also said that the Court took it upon themselves to find that the McCain Feingold law was unconstitutional.  This issue was not before the court.  The parties had agreed that the constitutionality of the McCain Feingold law was not up for disposition, only the specifics of this particular case.  By so doing Justice Stevens said, they "changed the case to give themselves an opportunity to change the law".  Stevens concluded his dissent with: "At bottom, the Court's opinion is thus a rejection of the common sense of the American people, who have recognized the need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt" (original corporate campaign limitations date back to 1907). So, the Supremes decided to take on the constitutionality of the entire law rather than simply ruling on whether or not this instance, the airing of Hillary, was a violation of Citizen United's First Amendment rights. You have to ask yourself what the "Fabulous Five" were seeking to accomplish other than to allow the unbridled and unlimited influence of major corporations on a political campaign. Now, fast forward ahead to two weeks ago when Justice Kennedy once again "changed the case to give themselves the opportunity to change the law".  In 1934 the VFW placed a cross at a place called Sunrise Rock on federal land in the Mojave National Preserve to honor American soldiers who died in World War I.  Bouno, a regular visitor to the Preserve, and who was apparently offended by the presence of the Christian cross, brought a civil rights action against the government based on the First Amendment's Establishment Clause which requires separation between state and church.  A Christian cross on US soil crosses the line.  Bouno won.  The court agreed that the presence of the cross was a violation of the First Amendments' Establishment Clause. Now here's where things start to get weird.  I don't disagree with the Courts literal interpretation of this clause.  I do have an issue with what happens next.  The government (Department Of Interior), disagreed with the lower court and took an appeal, but before the appeal was heard Congress decided to get involved.  Thinking they were clever, they took the land upon which the cross resided and gave it to the VFW in exchange for a different piece of land close by.  Now the cross is on private property and the Establishment Clause of the First Amendment is no longer an issue - right?  Wrong, guess who files another suit.  Yes, Buono.  This time he claims that what Congress did was just subterfuge.  The transfer of the land was just another violation.  To make a longer story shorter both lower courts agreed.  So now the stage is set for Kennedy and company to make their appearance in this already mishandled fiasco. It became Kennedy's cross to bear.  The Establishment Clause prohibition could be overcome if we make the cross secular and non religious.  Good thinking.  Let's just ignore 2000 years of symbolism and make the cross upon which the whole of Christianity revolves non Christian.  That is exactly what he did.  He "changed the case" so he could "change the law".  His reasoning was as follows.  "Placement of the cross on federal land by private persons was not an attempt to set the state's imprimatur on a particular creed.  Rather, the intent was simply to honor fallen soldiers." And so, The Supreme Court has ruled that a cross is no longer a cross.  Oh, William Shakespeare where are you when we need you.  A cross by any definition is just a marker and nothing more. Now don't get me wrong.  I agree with the outcome.  The cross should stay but the analysis is just wrong.  In law school they taught us that bad facts make bad law.  Well changing the facts to suit the outcome is not the way it's supposed to work.  The Supremes are supposed to be the brightest legal minds in the country.  Why do they have to take such a circuitous route?  Was there a more direct way?  What kind of doors does this open?  What will be next?  Maybe prayer in schools will be reconsidered and found to mean nothing more than the way a school begins its daily routine and has nothing to do with religion. Now back to the original question. Is the Court going too far and overreaching when it messes with the facts and case to get a result they feel needs addressing?  Are they changing the constitution to fit some agenda?  Is the constitution a living document that should be molded to fit the times?  If so, then should 5 people (Kennedy, Roberts, Alito, Scalio and Thomas) be the deciders? Two important cases which stand to have lasting influence have been decided on less than solid legal thinking.  Maybe the Constitution is, as many say, a living document that needs to reflect the times.  I am willing to bet that James Madison who is considered by most legal scholars as the architect of the Bill of Rights did not see this coming.  How could he?  The Bill of Rights was adopted in 1791 and the case of Marbury vs. Madison, which was the first case involving a constitutional challenge and which established the Supreme Court as the final authority on this matter did not happen until 1803. I wonder what he would say?  Since my first draft of this post President Obama has nominated Elena Kagan to replace the retiring Justice Stevens. Kagan in her capacity as Solicitor General presented the government's case at oral argument in Citizens United. Her first and only argument in the Supreme Court and probably her last. Next time she may be on the other side of the bench. Small world. Dennis F Feeley

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