When my kids were growing up, there were lots of Chuck Norris jokes.
Chuck Norris is so strong he makes onions cry. So strong he can kill two stones with one bird. He can even kill your imaginary friend.
As I began this article, I found myself writing similar one-liners:
The Supreme Court of the United States is so corrupt that it makes corruption legal.
It is so corrupt that it’s ruled that corruption is the way democracy is supposed to operate.
The lawyers have warned me to say – to declaim! – that I am not calling any of the judges corrupt in the law as it is currently interpreted. That’s because they, themselves, have changed what can be charged as a crime so that it moves further and further from the kind of transgressions they and their class are likely to do.
The Supreme Court is so corrupt that they think that other people can’t see their corruption.
The Supreme Court is so corrupt that they can’t see corruption when it’s in their mirror.
All of these should be absurd, comic, hyperbole. Like Chuck Norris jokes.
Unfortunately, they’re not.
Chief Justice John Roberts, along with Antonin Scalia, Samuel Alito, Anthony Kennedy, and Clarence Thomas, wanted to destroy campaign finance laws. Forever.
Then in August 2008, Citizens United v Federal Election Commission came along.
Citizens United, an eager boutique in the right-wing propaganda business, had made Hillary: The Movie. They claimed it was a documentary. Even their supporters on the Supreme Court said it was really electioneering. Therefore, a campaign contribution. According to the Bipartisan Campaign Reform Act of 2002 (BCRA), it couldn’t be shown within 30 days of a primary election.
The case was about those 30 days before the 2008 Democratic primary election. That’s all.
The court could have easily decided on the question in front of them, “Can Citizens United show the film?”, while leaving most of the campaign financing law intact. To quote Roberts, “The cardinal principle of judicial restraint – if it is not necessary to decide more, it is necessary not to decide more.” The bigger problem was that Citizens United hadn’t argued that the whole law might be unconstitutional. Judges are supposed to rule only on things that are in a case.
What to do?
Justice John Paul Stevens spelled it out. “Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”
They sent it back to be re-argued with the stuff they wanted added in. Which it was. Then, in January 2010, they made their decision. What’s in it – behind the clutter of citations – is astonishing.
The court ruled that corporations have all the free speech rights of human beings, because they are associations of human beings. It ruled that money is speech. The spending of money on political campaigns can’t be limited, it said, because it would be a limitation of free speech – a clear violation of the First Amendment. Union spending can be restricted, however, because there might be members who disagree and that would violate their free speech rights. (There are shareholders that might not agree with corporate political spending, but that reasoning could not be applied to businesses. Because unions were bad and corporations were good?) Access and influence can’t be corruption. Doing favours for money was renamed: “Responsiveness.”
Justice Kennedy, who wrote the decision, quoted himself from another decision:
“Favoritism and influence are not … 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.”
Idealistic love for free speech? Or corrupt?
The answer is not in what Supreme Court justices say. The answer is in what they do.
Let us look at other “free speech” cases.
The Millionaires Amendment. There was a limit on the size of contributions that individuals could give. There were no restrictions on what a mega-millionaire could spend on himself. The amendment said that if the millionaire passed a certain threshold of self-spending, the limit regular people can spend on his opponent could be raised.
In 2008, the court said this “impermissibly burdens” the millionaire. Unconstitutional!
The 1998 Arizona Citizens Clean Elections Act passed by referendum, was clearly what the people really wanted. Its goals were to diminish the influence of special interest money, have more candidates bringing ideas, free politicians from eternal fundraising so they could go do their jobs, and give voters more choices. It provided public funding for statewide campaigns. Candidates who took public money agreed to limits. If a privately funded candidate was significantly outspending them, the public subsidy would go up.
Roberts wrote in 2011 that public funding “substantially burdens political speech”. Unconstitutional!
Public Service Unions. Some union members have different political views than their unions. The solution, for years, has been that such folks only pay a portion of regular unions dues, called an “agency fee”, to cover the business part of what unions do.
In 2018, the Supreme Court decided that “States and public-sector unions may no longer extract agency fees from non-consenting employees.” The court said that violates free speech!
They denied free speech rights for a high school student holding a sign that said “Bong Hits for Jesus!”, for a deputy district attorney who revealed that a sheriff misrepresented facts to get a warrant, to a prisoner who wanted to read the Christian Science Monitor, and to the Humanitarian Law Project for training people variously called separatists, terrorists or rebels on methods of peacefully resolving conflicts.
In US politics, “dark money” refers to spending meant to influence political outcomes where the source of the money is not disclosed. We know of $17m in dark money spent to block the nomination of Judge Merrick Garland and to support Neil Gorsuch. Another $17m to prop up Brett Kavanaugh. An estimated $22m on promoting Amy Coney Barrett. She was asked about it during her confirmation hearing. She said, “I am unaware of any outside groups or special interests having made donations on my behalf.”
If someone spent $22m to get you a posh job, would you notice?
In 2021, Americans for Prosperity brought a suit against a California law that required them to reveal some of their donors. The non-profit was a creation of the Koch brothers and they had run a “full-scale” – their expression – campaign for Barrett. They’d previously supported Kavanaugh and Gorsuch.
Would the judges recuse themselves?
Barrett, Kavanaugh and Gorsuch didn’t even blink. They stayed. Then ruled for the people who had spent millions of dollars to put them there.
In their public pronouncements, these judges have a very clear idea of how they’re supposed to act.
John Roberts, testifying to the Senate, said, “I have no agenda. My job is to call balls and strikes, not to pitch or bat.”
Amy Barrett, at her hearing, said, “I don’t have any agenda.”
Samuel Alito said, “A judge can’t have any agenda. A judge can’t have any preferred outcome in any particular case.”
Clarence Thomas swore that, “those of us who have become judges understand that we have to begin to shed … personal opinions … I don’t sit on any issues, on any cases that I have prejudged.”
Brett Kavanaugh promised that “Judges do not make decisions to reach a preferred result.”
“We sometimes hear judges cynically described as politicians in robes, seeking to enforce their own politics rather than striving to apply the law impartially,” Neil Gorsuch said, “but if I thought that were true, I would hang up the robe.”
All these statements are sworn testimony from their confirmation hearings.
All of them are false.
They all came up through the Federalist Society. It selects people who like its agenda. It nurtures that agenda and invests in loyalists. It selected Gorsuch, Kavanaugh and Barrett to be nominated because they could be counted on to stick to that agenda. Amy Barrett said, “This court is not comprised of a bunch of partisan hacks.” But their decisions prove that’s what they are.
With all of that, what strikes me as the ultimate statement of this group’s corruption came from Jane Roberts, the wife of the chief justice. She pairs high-profile job-seeking lawyers with leading firms, large corporations and government institutions. Many of these lawyers practise on cases that come before the court. She makes a fortune at it.
She was asked if that created any undue influence.
“Successful people have successful friends,” was her reply. As for their critics, let them eat cake.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.