If democracy ends in America in the near future and gives way to an oligarchy – as seemed likely up until last year – or a kleptocracy – the current portent of things to come – and historians attempt to look backward to discover how it happened, one of the characters who will appear in their pantheon of anti-heroes should be Supreme Court Associate Justice Anthony Kennedy.
Kennedy has a fairly good reputation. In a court that is constantly divided with four on the right and four on the left, he has been the “swing” vote. As a result, he has been considered neither truly conservative nor liberal, and, therefore, a person of individual conscience and probity. That’s the result of the misapplication of conventional thinking.
Kennedy’s votes, and his opinions, line up in two categories. On social issues, which means abortion and gay rights, he has been, indeed, liberal. When it comes to money and power, he has been an agent of the top one percent in its class warfare against the rest.
This may sound strident and over the top. But a look at a single decision, Citizens United vs FEC (2010), will show that it’s not. The landmark campaign finance ruling paved the way for anyone to support a candidate with unlimited funding through the use of groups known as Super PACs (political action committees) and allowed donors to keep their identity and the source of their money secret through similar organisations which have earned them the nickname “Dark Money” groups.
The case began with Citizens United, a nonprofit corporation that wanted to advertise for a documentary critical of Hillary Clinton before the 2008 presidential election. However, federal law set strict limits on the ability of corporations and unions to spend and attempt to influence elections. The case pitted campaign finance restrictions against Citizens United’s claim that businesses have First Amendment free speech rights.
To begin with, the majority – as noted in the dissent by Justice Stevens, “changed the case to give themselves an opportunity to change the law”. Kennedy wrote the majority opinion. It could be described as rewriting reality as radically as Trump does, but with enough sobriety that makes it sound sane.
Kennedy, writing for the majority, said that corporations have all the same free speech rights as human beings because they are associations of human beings. Before anyone buys into the notion that this comes from a total and fervent belief in free speech, as Kennedy would like us to think, it has to be noted that when it came to actual humans, especially individuals with limited power – a student, a prisoner, a whistle-blower in the LA DA’s office, and a peace group – Kennedy voted that their speech rights could be constrained.
His opinion reiterated and institutionalised the idea that money is speech. In his opinion, he even renamed the people who spent money on advertising, calling them “speakers”. That gives spending on advertising and advocacy First Amendment protection. If we look at Kennedy’s votes elsewhere, we discover that what he really meant was that spending by the rich cannot be limited, but public spending (Smith v Arizona Citizens Clean Elections Commission), or even raising the amounts that other private citizens could contribute to compete with a self-funding billionaire (Davis v FEC), could be squelched. Indeed, it had to be stepped on, because it violated the free speech rights of the richer parties.
What? That’s the special logic of a right-wing Supreme Court justice. You’re supposed to respect it.
He voted, in those cases, to support of the idea that “levelling the playing field,” and to “combat corruption” did not really represent a “compelling interest” of the state.
In Citizens United, Kennedy wrote that “independent expenditures, including those made by corporations,” for the benefit of a candidate “do not give rise to corruption”. This denies fundamental reality. People do things in return for money. People who give money usually want things in return.
He took it further, claiming those expenditures don’t even “give rise to … the appearance of corruption”. But of course, they do. Eighty-four percent of Americans believe that there’s too much money in politics. That’s more than the number of Americans who think the Earth revolves around the sun (74 percent). He spoke, soothingly, for us all, that “the appearance of influence or access will not cause the electorate to lose faith in this democracy”. But of course, for many, around the whole world, it has.
Where all this was going was even worse. It wasn’t that he was denying reality. Kennedy was saying that influence of money in politics was the way democracy is supposed to work. He quoted himself from another case (McConnell vs FEC) in which he’d been in the minority. “Favoritism and influence are not, as the Government’s theory suggests, avoidable in representative politics … It is well understood that a substantial and legitimate reason, if not the only reason, to cast a vote for, or to make a contribution to, one candidate over another is that the candidate will respond by producing those political outcomes the supporter favors. Democracy is premised on responsiveness.”
Now, money was equated with votes, as well as speech. It would seem to mean that a million dollars should have a million times the influence of a one-dollar contribution in the way that a million votes should swamp a single vote.
In the course of this, Kennedy was also defining away corruption. Short of taking wads of cash in a brown paper bag, along with a surreptitiously recorded conversation where one of the participants talks like Tony Soprano and wants the garbage-hauling contract in return, it could no longer be prosecuted. Sure enough, a few years later, the Supreme Court overturned the conviction of Virginia Governor Robert McConnell because the things that the jury saw as bribery, the Supreme Court now saw as “constituent services”.
In terms of women’s rights, reproductive rights, gay rights, Kennedy will be missed.
His final act, timing his retirement so that Trump could select his replacement and Mitch McConnell still had control of the Senate to ram it through, is compelling testimony that he was committed, above all, to transferring as much power and wealth to the right, to corporations, and to the rich, as he possibly could.
The views expressed in this article are the authors’ own and do not necessarily reflect Al Jazeera’s editorial stance.