Nary a peep of protest

Original Link: http://www.philly.com/philly/blogs/americandebate/Nary_a_peep_of_protest.html

By Dick Polman

Remember how conservatives always complain about "unelected judges" who "legislate from the bench" and "make the law?" Remember how they always insist that judges should respect judicial precedents, bow to the wisdom of our elected legislative bodies, and respect the literal wording of the Constitution? Remember how they restated their convictions last summer while trying to tag Sonia Sotomayor as an "activist judge?"

Well, there was an historic development at the U.S. Supreme Court yesterday: Five Republican appointees, constituting a narrow majority, decreed that the political playing field shall henceforth be tilted in favor of the special interests with the deepest pockets - namely, the corporations of America, which, until yesterday's ruling, had been barred by law from pumping their money directly into election campaigns ever since 1907.

These five Republican appointees reached their decision by simply sweeping away a century of congressional laws and decades of high court rulings. In short, they disrespected judicial precedent, thumbed their noses at our elected representatives, and ignored the literal wording of the Constitution - which speaks only of "we the people" and says nothing about the rights of corporations.

And yet there has been nary a peep of protest from conservatives about yesterday's "activist" behavior.

Starting with the '07 law signed by Theodore Roosevelt, congressmen and presidents had deemed it essential that corporations not be permitted to run wild with their money in federal campaigns, lest their inevitably huge megaphones drown out everybody else. A string of Supreme Court rulings have upheld such laws, some as recently as 1990 and 2003. And even way back in 1819, Chief Justice John Marshall wrote that corporations don't have the same rights as people; in his words, a corporation is "an artificial being, invisible, intangible. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence."

So there it was: the ban on corporate campaign donations has long been settled law; indeed, as recently as six years ago, the high court specifically ruled that the ban "has been firmly embedded in our law." Yet now we have John Roberts and his four GOP cohorts sweeping it all away, behaving as "activist judges."

(Corporations have long been putting money into elections via various indirect routes, such as trade associations and political action committees. But this ruling takes off the handcuffs, allowing them to dip directly into their general treasuries. The ruling also frees up labor unions to spend directly, but we all know that corporations have a lot more to spend than labor does. To get a rough idea, here's a stat: During the last election cycle, the Fortune 100 companies alone reportedly posted combined revenues of $13 trillion.)

Anyway, care to tally up the number of conservatives and Republicans who, over the past 24 hours, have assailed the Roberts majority for making law from the bench? As far as I can tell, zip.

If they are really true to their professed convictions, if they have any desire to be intellectually consistent, they would point out what Roberts himself said back in 2005, during his confirmation hearings: "I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in prompting stability and evenhandedness...It is not enough that you may think that the prior decision was wrongly decided." Roberts even paraphrased a line from Founding Father Alexander Hamilton: "To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents."

Yet now Roberts has deemed himself unbound - functioning more as the judicial arm of the U.S. Chamber of Commerce (which naturally applauded the ruling) - and conservatives who routinely inveigh against "activist judges" have conveniently fallen mute. It's obvious why. They're just fine with "judicial activism" as long as it yields the kind of ruling they like. And a ruling that unleashes corporate cash tickles their free-market fancy. All that matters is the end result; how a ruling was reached is irrelevant. Unless a ruling strikes them as liberal. Then it's "judicial activism."

I think the word for all this is hypocrisy.