Yesterday, the Supreme Court had an official ceremony where Justice Sotomayor took her seat. Ronald Dworkin had an article in the NY Review of Books criticizing her confirmation hearings, putting some blame on her personally:
Her hearings could therefore have been a particularly valuable opportunity to explain the complexity of constitutional issues to the public and thus improve public understanding of this crucially important aspect of our government. But she destroyed any possibility of that benefit in her opening statement when she proclaimed, and repeated at every opportunity throughout the hearings, that her constitutional philosophy is very simple: fidelity to the law. That empty statement perpetuated the silly and democratically harmful fiction that a judge can interpret the key abstract clauses of the United States Constitution without making controversial judgments of political morality in the light of his or her own political principles. Fidelity to law, as such, cannot be a constitutional philosophy because a judge needs a constitutional philosophy to decide what the law is.
As a comment re-printed on the bottom of this article that basically agrees with the sentiments suggest, I think too much can be asserted in this vein. I surely don't blame her -- it's the job of the Senate to challenge her as part of its advise and consent duties. But, it is quite true that following the "law" in this context requires an understanding of the basic philosophy one follows. Comparing Justices Breyer and Scalia's jurisprudential books underlines the point.
So will be seen in the case from the 2008 Term that was left hanging last June. A preview noted the apparent immediate issue: "Citizens United is an ideological group (like the NRA or Planned Parenthood), but it takes for-profit corporate funding." Thus, even if a video for demand documentary about Hillary Clinton was at stake ... not fiscal donations to a candidate as such (the core concern here, apparently) ... it violated McCain/Feingold. Putting aside the ironic matter that McCain's ideal justice Scalia is on the wrong side in his view (dead wrong), there was the assumption that some as applied violation would be found here, chipping away at the law.
This made sense given the suspect nature of the record on some broader argument. Issues of this nature involve reams of factual materials. The Obama Administration had somewhat less time to prepare the first time around given the nature of things. Being told in June to defend against a much broader overturning of corporate regulations would be particularly dubious. In fact, Justice Sotomayor's first questions focused just on that matter. Why not a limited statutory solution? What about the limits of the record? [OTOH, in one extended question, she even suggested broad protection of corporate personhood was a problem.]
It is useful, with all the big questions and principles being tossed around, to remember things could be decided narrowly. The precedent being examined today, for instance, was not an across the board limit on corporations, and even there, the core matter was setting up a separate PAC independent from the corporation itself. As Justice Brennan noted in a concurrence, even certain corporations would be protected:
First, the group "was formed for the express purpose of promoting political ideas, and [could not] engage in business activities." Id., at 264. Second, it "ha[d] no shareholders or other persons affiliated so as to have a claim on its assets or earnings. This ensure[d] that persons connected with the organization [had] no economic disincentive for disassociating with it if they disagree[d] with its political activity." Ibid. (footnote omitted). Third, the group "was not established by a business corporation or a labor union, and it [was] its policy not to accept contributions from such entities. This prevent[ed it] from serving as [a] condui[t] for the type of direct spending that creates a threat to the political marketplace." Ibid.
One loses track if the current law would match this; the solicitor general (Elena Kagan, also her first time at the rodeo) got in some trouble for providing a novel reading of precedents ... how dare she do that when the majority here is itching to overturn the precedent anyway. She did say the fear was that even nonprofits would someone serve as "conduits" to for-profits ... the two do not tend to be separate, I'd think, given the number of non-profit donations involved alone. Anyway, the headnotes to the Austin case, the one at risk, gets to the core of its holding by upholding a law with the purpose to:
eliminate the distortion caused by corporate spending while also allowing corporations to express their political views by making expenditures through separate segregated funds
The conservative majority, again this time not so friendly in the minds of Sen. McCain, tends to find this sort of thing a threat to free speech. Anyway, remember, donations alone isn't at issue in this case. It is an "independent expenditure" that promotes a particular message, one for/against a candidate whose election would affect the business of the corporation. Kagan raises the problem that shareholders might not support the message, shareholders via mutual funds and the like for which they are not likely to know at any given time which stocks they even own. CJ Roberts felt this was "paternalistic."
Information about the orals today can be found here and here. A few quick thoughts. Floyd Abrams, arguing for Sen. McConnell (the loser in the case five or so years back) didn't seem to me to be too compelling. He pushed for a broad holding as did Ted Olson (not only having strange bedfellows in same sex marriage cases), who did a better job. It might be a time matter -- Seth Waxman for the other side did not seem to do much for his ten minutes. Kagan was spunky. She promises to be fun. And, as the Election Blog noted, there was a "hot bench," many sharp questioning. But, as you know, only when Sotomayor does that is it a problem.
The government is probably going to lose ... it only depends how big. When Roberts fears "FCC bureaucrats" will be left to protect the First Amendment, and Alito (the other swing) snipes that appeal to the history of corporate regulation is a "sound bite," you know you are in trouble. Kagan assured the justices that books were not going to be touched here, even if technically the law might leave that open. I'm unsure, as with Alito, where the line is there. Why not film? Is film a second-rate medium now? Also, I think Scalia has a point -- if we fear corporate power, a blunderbuss applying to all corporations, most rather small, is overbroad. And, if shareholders is the problem, some limited disclosure law could be set up.
But, the intelligent thing to do would be to send a warning Congress' way (see the voting rights case last June) while deciding things fairly narrowly. Yes, there is a danger of overbroard laws, but something of this caliber deserves a full record, not an overtime serious question akin to a child asking mommy about sex a few minutes before she drops him or her off at school. Let's see what happens.