William Blake in Reuters

Summary Judgments for March 22

By Carlyn Kolker

I, dissent


It’s been a dramatic couple of days for dissenting at the Supreme Court. On Tuesday, Justice Ruth Bader Ginsburg read her dissent from the bench in a case about the right of state workers to sue under the Family Medical Leave Act. “The inequality Congress sought to overcome seems to me well within the national legislature’s authority to address,” said Ginsburg, who disagreed with the majority that states can’t be sued for damages under a section of the leave act, according to Reuters’ Jim Vicini. The next day it was Antonin Scalia’s turn to speak out. The majority’s position in two connected criminal cases — that defendants have a constitutional right to receive adequate instructions from counsel about plea bargain options — was “absurd,” Scalia said, according to the Associated Press. “In today’s cases, the court’s zeal to bring perfection to everything requires the reversal of perfectly valid, eminently just, convictions. It is not wise; it is not right,” Scalia said, according to Reuters.

Reading a dissent from the bench is not new, but is a way of telling your colleagues that you really, really disagree with them. It’s also a practice that is on the rise, according to a 2010 article in the scholarly Justice System Journal, called “The Brooding Spirit of the Law”: Supreme Court Justices Reading Dissents from the Bench. The article says the average number of dissents from the bench has gone up during the leadership of Justice John Roberts, to 3.75 per term. Scalia and Ginsburg are both, in percentage terms, frequent dissent readers: Ginsburg read about 10.6 percent of her dissents from the bench – the most of any justice in percentage terms – and Scalia, 7.9 percent, according to the paper, by William Blake, a graduate student in government at the University of Texas and Hans Hacker, a political science prof at Arkansas State University.

A few other notable examples of justices reading their dissents from the bench, courtesy of Adam Liptak: In 2010 John Paul Stevens spent 20 minutes reading out his dissent in the Citizens United case. In 2007, Ginsburg read a dissent in the employment discrimination case Ledbetter v. Goodyear Tire & Rubber Co. And Scalia and Clarence Thomas read dissents in cases that gave more judicial process rights to Guantanamo Bay prisoners.

There are some big cases this term – health care comes to mind. Maybe we’ll hear more dissents in the coming months.

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William Blake Cited in the New York Times

In a Polarized Court, Getting the Last Word


Published: March 8, 2010

A few times a year, Supreme Court justices go out of their way to emphasize their unhappiness by reading a dissent from the bench out loud, supplementing the dry reason on the page with vivid tones of sarcasm, regret, anger and disdain. The practice is on the rise, and it is suggestive of an increasingly polarized court.

“Dissenting from the bench,” a new study to be published in Justice System Journal contends, is a sort of nuclear option that “may indicate that bargaining and accommodation have broken down irreparably.”

Yes, a new study. Academic scrutiny of almost every aspect of the Supreme Court is oppressively comprehensive, and now three sets of researchers have identified the empirical analysis of oral dissents as a new frontier.

Over the 36 years Warren E. Burger and William H. Rehnquist served as chief justices, there were on average three dissents read from the bench each term. In the first four years of the court under Chief Justice John G. Roberts Jr., the number rose by a quarter, to 3.75.

So far this term, there has been only one oral dissent, but it was a doozy. Justice John Paul Stevens spent 20 minutes in January rebutting the majority decision in Citizens United, the big campaign finance case.

That brings the total number of oral dissents in the Roberts court to 16, and all but three came from the court’s liberal wing. The exceptions were protests from Justices Antonin Scalia and Clarence Thomas over decisions in favor of prisoners at Guantánamo Bay.

There is, of course, an element of stagecraft to oral dissents. If justices are to engage in what their colleagues may view as a breach of collegiality and decorum, they want it to count.

Consider Bowers v. Hardwick, the 1986 decision that said there was nothing in the Constitution to stop states from making it a crime for gay men to have consensual sex at home. Justice Harry A. Blackmun had written a dissent, and he was thinking about summarizing it from the bench.

That sounded good to his law clerk, Pamela S. Karlan.

“The majority’s treatment is a disgrace,” she wrote in a memorandum to the justice that became public when his papers were released “and it’s well worth making clear to everyone what the case is really about.”

Ms. Karlan, now a law professor at Stanford, also had some public relations advice for her boss about the case, which was to be announced that Friday.

“I think Friday is a bad day to have the case brought down,” she wrote. “A summer Friday and Saturday are probably the least likely time for people to take notice of what the court has done. I would press, if I were you, for Monday instead.”

The announcement was indeed pushed back, and Justice Blackmun delivered a passionate dissent. It took 17 years, but the court came around to his view when it overruled Bowers in Lawrence v. Texas.

Justice Stevens has spoken up in dissent more often than any other current justice, but that is largely a testament to his longevity. He has written about 600 dissents in his almost 35 years on the court. But he has dissented from the bench just over 20 times.

In percentage terms, Justice Ruth Bader Ginsburg holds the modern record. She has read more than 10 percent of her dissents from the bench, according to the study in Justice System Journal, by William D. Blake, a graduate student in the government department at the University of Texas, and Hans J. Hacker, a political scientist at Arkansas State University.

In 2007, Justice Ginsburg called upon Congress from the bench to reverse what she called the majority’s “parsimonious reading” of an employment discrimination law in Ledbetter v. Goodyear Tire & Rubber Co. Congress did so last year.

Scholars are split about what role ideology plays in generating oral dissents. One study by Timothy R. Johnson, Ryan C. Black and Eve M. Ringsmuth in the Minnesota Law Review last year found, as one might expect, that ideological opposites are more likely to dissent from the bench. But Mr. Blake and Mr. Hacker make the case that disappointed ideological allies are the most likely oral dissenters. It is your friends, their study suggests, who drive you crazy.

There are no comprehensive records of oral dissents, and researchers reviewed audio recordings — many available on the indispensable Oyez Web site — newspaper accounts and other resources to track them down. Jill Duffy, a research librarian at the Supreme Court, and Elizabeth Lambert, a staff lawyer with a Federal District Court in New York, seem to have assembled a complete list going back to 1969 in the winter issue of the Law Library Journal.

The list shows that the Roberts court is generating lots of notable oral dissents. Here, for instance, is what Justice Stephen G. Breyer had to say from the bench when the court announced its 2007 decision sharply limiting the role race could play in school assignments: “It is not often in the law that so few have so quickly changed so much.” Those words do not appear in his written dissent.

Justice Clarence Thomas, who has not asked a question from the bench since February 2006, did read a dissent that June from a decision striking down a plan to use military commissions to try suspected terrorists.

“In 15 terms on the bench,” he said, “I have never read a dissent from the bench, but today’s decision requires that I do so.” But Justice Thomas’s memory failed him. He had dissented from the bench once before, in Stenberg v. Carhart, a 2000 abortion case.

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William Blake Cited in the Washington Post

You can’t blame the Framers for the filibuster

By Ezra Klein

Thumbnail image for breakingthefilibuster.jpg

If Democrats really do try to reform the filibuster Jan. 5, we’re likely to hear a lot about how the Founding Fathers designed the Senate with the filibuster in mind, or how the filibuster is written into the Constitution. Sen. Judd Gregg gave a pretty comprehensive version of this argument last March. Sen. Chris Dodd gave another version of it in November.

But whatever you think of the filibuster, this argument isn’t true. The delaying tactic — which has morphed into a supermajority requirement that underpins the everyday workings of the modern Senate — is not in the Constitution. It wasn’t envisioned by the Founding Fathers. Quite the opposite, actually.

As William Blake shows, the Founders would have been horrified by the filibuster. The Constitution was, in part, a reaction to the paralysis of supermajority requirements. Its predecessor, the Articles of Confederation, required two-thirds of the states to agree before the government could declare war, coin money, enter treaties, or spend or borrow funds. That rendered the government barely able to function. James Madison, in ‘Federalist 58,’ went at the supermajority directly:

It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.

The Constitution itself was very specific on the moments when the Senate should require more than a simple majority: impeachment of a president, expulsion of a member or overriding a veto. If the Framers had wanted a constant supermajority requirement, they would have mentioned it.

As for the old story where George Washington pedantically explains to Thomas Jefferson that the Senate is meant to do for legislation what the saucer does for coffee (“cool it”), the Senate was designed with important differences than the House: The Senate is smaller than the House, it represents states rather than people, and only a third of the body is up for reelection at any given time. Elections come every six years, and the Constitution originally charged state legislatures, rather than voters, with voting senators in and out of office. Senators themselves have to be older than members of the House, and have to have been citizens for longer. Again, the Framers were pretty specific on the differences between the House and the Senate, and the filibuster didn’t make their list. In fact, it was the House where a filibuster-like practice originally reigned before the body changed its rules.

This leads to an obvious question: If it’s not in the Constitution, and it wasn’t built into the Senate from the start, where does the filibuster come from? Well, it was an accident.

All that said, I want to be clear: If, while filming National Treasure 3, Nicholas Cage unexpectedly discovers that the Liberty Bell is encircled by a secret message in which every man, woman and child who was alive to see the Constitution ratified registered their implacable and eternal opposition to the filibuster, that’s not a good argument against the filibuster. The Framers did a remarkable job in 1788, but they were men (and only men, and only white men, and only rich white men, and so on), not gods, and they did not have the information or experience that we have today. We were right to amend the Constitution to allow the direct election of senators, and perhaps the 60-vote requirement is a positive addition to the Senate, if an accidental and recent one.

But insofar as these appeals to revolutionary authority are an important part of contemporary political discourse and routinely get misused when it comes to the rules of the Senate, it’s worth setting the record straight. The Constitution didn’t create the filibuster. The Framers didn’t intend it. The modern filibuster was created in the 1970s, when cloture was moved from two-thirds of the Senate to three-fifths and dual-tracking was implemented, and it only became ubiquitous in the last 20 years, as you can see from the graph atop this post. We may think the filibuster is good or we may think it’s bad, but either way, it’s ours.

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On Individual Mandates and Limited Government

Two federal judges have struck down a key portion of the recent health care reform – the requirement that all Americans purchase health insurance or pay a penalty.  Both judicial decisions argue that the individual mandate goes beyond the power granted to Congress to tax and regulate interstate commerce.  Neither decision is overtly originalist, although I imagine most originalists oppose the individual mandate.

This begs the question: what did the Founding Fathers think about commerce?  Those of you who took constitutional law will no doubt remember John Marshall’s famous statement that commerce is intercourse, and not just the trafficking of goods.  This broad approach to commerce makes sense, given the utter failure of the Articles of Confederation to promote commercial regulation.

Here’s a second, less well-known, insight into the Founders’ and commerce.  President John Adams signed a bill into law in 1798 requiring merchant marines to purchase health insurance.  Don’t believe me?  Read on:

CHAP. [94.] An act for the relief of sick and disabled seamen.

§ 1. Be it enacted, Sfc. That from and after the first day of September next, the master or owner of every ship or vessel of the United States, arriving from a foreign port into any port of the United States, shall, before such ship or vessel shall be admitted to an entry, render to the collector a true account of the number of seamen that shall have been employed on board such vessel since she was last entered at any port in the United States, and shall pay, to the said collector, at the rate of twenty cents per month for every seaman so employed ; which sum he is hereby authorized to retain out of the wages of such seamen.


§ 3. That it shall be the duty of the several collectors to make a quarterly return of the sums collected by them, respectively, by virtue of this act, to the secretary of the treasury ; and the president of the United States is hereby authorized, out of the same, to provide for the temporary relief and maintenance of sick, or disabled seamen, in the hospitals or other proper institutions now established in the several ports of the United States, or in ports where no such institutions exist, then in such other manner as he shall direct: Provided, that the moneys collected in any one district, shall be expended within the same.


[ Approved, July 16, 1798.]

I can’t wait to see how Justices Scalia and Thomas deal with this bit of history when the health care law reaches the U.S. Supreme Court.  I am optimistic about the law’s chances of survival.  The Court’s recent Commerce Clause jurisprudence is much closer to John Marshall’s conception than the laissez faire attitude that dominated the Court before the New Deal.  I predict the law will get at least six votes, including the support of the chief justice (though I imagine he will go to great lengths to criticize the law as bad public policy).

So there you have it – John Adams is the only person in American history to be accused of being a monarchist and then (200 years later) a socialist.

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Umpires and judges

Spring Training is underway in Florida and Arizona!  To celebrate the return of the Boys of Summer, I have whipped up a couple of excerpts from a paper I have written about judges and baseball umpires.  I hope you enjoy it.

The nexus between the legal academy and baseball is long-established and rich. Thus, it is unsurprising that then-Judge John Roberts used a baseball analogy to describe his views of the role judges ought to play in the political system. During his confirmation hearings, Roberts stated: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to  see the umpire.” This analogy was criticized by legal scholars as faulty in that it mischaracterizes the nature of judging as formalistic. As a Little League umpire, I believe the analogy is flawed because it mischaracterizes the nature of umpiring as formalistic.

A more accurate and detailed explanation of umpiring provides a useful illustration of the differences between legal formalism and legal realism. Umpires encounter many of the same problems legal realists argue that judges face: the rules of baseball are often incomplete, indeterminate, and made of artificial constructs that are difficult to apply in the real world. Further, a purely formalistic approach to umpiring undermines the fundamental values of our national pastime, which is why umpires often stretch or even flat out ignore some parts of the rulebook for the good of the game.

Consider what a formalistic application of the rules of baseball would require of an umpire when infielders attempt to turn a double play. The rules of baseball state a fielder can only record a force out if he has possession of the ball and touches a base before the runner arrives there. But often times when the shortstop flips the ball to the second baseman, the second baseman will be near second base, without actually touching it, before throwing on to first base to complete the double play. In this situation, called the “neighborhood play,” the umpire will still call the runner out at second base.

The rulebook provides a clear definition of a force out, and usually these plays are not very difficult to adjudicate, so why does the umpire ignore the rulebook? They do so to protect the safety of the second baseman. If the second baseman were required to touch second base before throwing on to first base in this situation, he risks a collision with the runner sliding into second. In fact, runners are taught to attempt to break up a double play by colliding with middle infielders, thereby disrupting their throw to first base. Thus the second baseman will touch an area near second base that will allow them to be far enough away from the sliding runner to complete the throw to first safely.

And let us not forget the strike zone, the definition of which is perhaps the worst artificial construct in the rulebook. The confusing nature of the strike zone prompted former Mets pitcher Ron Darling once quipped in Stewart-esque fashion: “I can’t really describe what a strike is, but I know it when I see it.” Whether the object is a twelve-to-six curveball or a racy movie, judges and umpires often cannot apply rules formalistically.

Thus, the judges as umpires analogy ultimately holds some value as a method of explaining the role of courts in an American democracy, but not in the way posited by Chief Justice Roberts.

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Happy Anniversary & More on Civics Literacy

First off, happy anniversary to the U.S. Supreme Court!  On this date 221 years ago, the Court convened for the first time in New York.  It was not until 1916 that Congress set the start of the Court’s term to the now-familiar first Monday in October.

Now more on civics literacy, a discussion which I began here.  Our new House Speaker may know legislative strategy, but he is a bit rusty when it comes to civics:

Perhaps these truths are not so self-evident if an elected official cannot remember where they were declared.  It is not so surprising that Boehner would confuse our two most important founding documents.  Ordinary American fall victim to the same mistake in high numbers.  From a 1987 Hearst Corporation survey:

True or False: The following phrases are found in the U.S. Constitution:

  • “From each according to his ability, to each according to his need.”
  • “The consent of the governed.”
  • “Life, liberty, and the pursuit of happiness.”
  • “All men are created equal.”
  • “Of the people, by the people, for the people.”

The correct answer is that the Constitution contains none of these phrases, though of course some of these ideas flow naturally from the principles espoused in the Constitution.  According to a 1987 study by the Hearst Corporation, most Americans fell into this trap.  Nearly eight in ten Americans thought the two phrases from the Declaration of Independence were in the Constitution.

Mistaking the Declaration for the Constitution is completely understandable (unless you are the Speaker of the House).  Scott Gerber has argued that the Declaration is essential to interpreting the Constitution.  Mistaking Karl Marx for the Constitution, which 45 percent (!) of Americans did, is more problematic.

Only 41 percent of Americans could correctly identify the purpose of the Bill of Rights, though again some of the other options for answering the question seem plausible.  A quarter of Americans thought the Bill of Rights were the preamble to the original Constitution.  Considering the importance the Bill of Rights play in our national political culture, this is an understandable mistake.  In fact, some the Founders considered putting the Bill of Rights at the top of the Constitution, a proposal which James Madison rejected.  Madison hoped that by placing the Bill of Rights at the end of the Constitution, Americans would not think them the most important feature of the document.  Boy was he wrong.  Madison originally opposed a Bill of Rights because a law infringing on the freedom of speech, for example, was not one of the enumerated powers granted to Congress by the original Constitution.

On other parts of this survey, most Americans fare much better.  Nearly eight in ten understood that the president cannot unilaterally make treaties.  I expected this number to be lower given the increasing prominence of executive agreements.    Nearly three-quarters of Americans correctly stated that the president cannot declare war unilaterally.  I expected this number to be much lower, given the historic abdication of power that is the War Powers Resolution.  On the other hand, 60 percent of Americans thought the president can unilaterally appoint a Supreme Court justice.  Considering that more than eighty percent of all high court nominees in U.S. history received confirmation, the president plays a much more important role in this process than Congress, making this error more understandable.

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The Court and the State of the Union

By tradition, some justices on the Supreme Court attend the State of the Union address.  Also by tradition, the justices do not express any sign of support of or opposition to the president’s agenda, leading one justice to conclude that the role the Court plays as that of a “potted plant.”

That tradition changed last year, when President Obama criticized the Court for its then-recent decision in Citizens United v. FEC. The president said the decision “reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”  Justice Alito, who was in attendance, seemed to mouth the words “not true” (the shortest dissenting opinion in Supreme Court history).

This year, Justice Alito will not be in attendance for the State of the Union, although six other justices – including all four Democratic appointees – will be there.

As for what happened last year, Justices Alito, Scalia, and Chief Justice Roberts have all made comments critical of the State of the Union atmosphere and have questioned why the justices should attend.  I have no problem with President Obama’s criticism.  Being a Supreme Court justice is a pretty great job.  Your salary can never be diminished, you have life tenure, you have the freedom to determine which cases you want to hear, plus you get a summer break on par with most high schools.  Once confirmed to the Court, there is little short of impeachment that the other branches of government can do to hold judges accountable.  The Constitution might isolate judges from reprisal, but it does not isolate them criticism.

As a footnote, the National Center for State Courts developed a list of states in which at least some state high court judges attend their governor’s state of the state address.  Enjoy!

  • Arizona
  • Arkansas
  • Colorado
  • Connecticut
  • Delaware
  • Georgia
  • Idaho
  • Indiana
  • Iowa
  • Kansas
  • Michigan
  • Minnesota*
  • Mississippi
  • Missouri
  • New Hampshire
  • New Jersey
  • New Mexico
  • New York
  • North Dakota
  • Oregon
  • South Carolina
  • South Dakota
  • Vermont*
  • Virginia
  • Washington
  • West Virginia
  • Wyoming

*By tradition, the incoming or incumbent governor delivers only an inaugural address. This information refers to those inaugural addresses.

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Rethinking (civics) literacy tests

I recently came across a civics literacy test administered by Intercollegiate Studies Institute.  I have to admit I got one question wrong when I took it, but, in my defense, it was an economics question.  I was not at all shocked to learn that most Americans fail this test miserably.  I was surprised that politicians who took the test scored worse than average Americans.  Yes, you read that correctly.

Are You Smarter Than a Politician?

Of the 2,508 People  surveyed, 164 say they have held an elected government office at least  once in their life. Their average score on the civic literacy test is  44%, compared to 49% for those who have not held an elected office.  Officeholders are less likely than other respondents to correctly answer  29 of the 33 test questions. This table shows the “knowledge gap” for  each question: the difference between the percentage of common citizens  who answered correctly and the percentage of officeholders who answered  correctly.

Theme of Question Citizens Elected
1. U.S. – Soviet Tension in 1962 70.09% 56.51% -13.58%
2. Declaration of Independence 83.09 69.78 -13.31
3. Sputnik 74.1 62.82 -11.28
4. Definition of Free Enterprise 41.45 32.08 -9.37
5. M. L. King’s “I Have a Dream” 80.5 71.5 -9
6. Electoral College 65.88 57.31 -8.57
7. Scopes “Monkey Trial” 67.76 59.21 -8.55
8. Susan B. Anthony 80.84 72.98 -7.86
9. Power to Declare War 53.6 45.82 -7.78
10. Business Profit 49.11 41.38 -7.73
11. International Trade 37.47 30.45 -7.02
12. FDR’s Government Programs 66.63 59.73 -6.9
13. Abortion 50.77 43.94 -6.83
14. Federal Branches and Foreign Policy 54.71 48.39 -6.32
15. First Amendment Freedoms 79.58 73.32 -6.26
16. Socrates, Plato, Aristotle, Aquinas 29.49 23.29 -6.2
17. FDR and the Supreme Court 25.07 19.24 -5.83
18. Taxes and Government Spending 27.7 22.12 -5.58
19. Free Markets vs. Centralized Planning 16.25 10.71 -5.54
20. Action Prohibited by the Bill of Rights 26.41 21.24 -5.17
21. Commander in Chief 79.04 74.46 -4.58
22. Anti-Federalists and the Constitution 38.22 33.82 -4.4
23. Source of phrase “a wall of separation” 18.92 15.07 -3.85
24. Policy Tool of the Federal Reserve 43.12 40.48 -2.64
25. Powers of the Federal Government 75.01 72.69 -2.32
26. World War II Enemies 68.76 66.58 -2.18
27. The Puritans 19.1 17.32 -1.78
28. Definition of a Progressive Tax 51.26 49.97 -1.29
29. Three Branches of Government 49.65 49.32 -0.33
30. Definition of a Public Good 27.6 28.03 0.43
31. Gettysburg Address 21.06 22.95 1.89
32. Fiscal Policy for Economic Stimulus 36.07 39.93 3.86
33. Lincoln–Douglas Debates 19.06 23.62 4.56

Granted, since this is a voluntary, Internet-based survey, there are probably some issues of representativeness of both samples, but these results are nonetheless remarkable.  The difference in proportions for the first 17 questions are statistically significant (p < .05, two-tailed test), and the results overall between the two groups fall just outside the 95 percent confidence interval.

Perhaps these results should not seem all that surprising in light of how some politicians have recently fared on civics issues.

In light of these embarrassing incidents and data, I think we should seriously reconsider implementing literacy tests – not for voters, but for candidates.  Literacy tests for voters were methods employed in southern states to keep blacks (and in some cases poor whites) from registering to vote.  The Voting Rights Act of 1965 invalidated this practice.

While it is manifestly unjust to hold voters to a certain intellectual standard in order to exercise the franchise, holding candidates to a higher standard is a very different issue.  The whole reason we have elections is to judge candidate qualifications and fitness for office.  It is axiomatic that elected officials need a thorough grasp of civics to do their jobs effectively.  Thus, I think that implementing  a civics literacy test for candidates might be a good idea. Perhaps all candidates for public office should be required to take this test or the American citizenship test and have the results be disclosed publicly.

The Founders were very concerned about the virtuousness of candidates for office.  Articles I and II of the Constitution outline various age, citizenship, and residency requirements for members of Congress and the president, although our Founders did not believe religion should be used to disqualify elected officials.  Ironically, there are no constitutional requirements for federal judges (not even a law degree). I think a civics literacy test would be consistent with these founding values.

[H/T to the good folks at the Monkey Cage]


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Assessing the Impact of Citizens United

The new Congress was recently sworn in, so I figured now would be a good time to look back on the midterm elections that created this Congress. Over at The Monkey Cage, John Sides is reporting what I had long suspected – the impact of the Supreme Court’s ruling in Citizens United has not been that extensive.  According to Prof. Sides:

Some commentators feared that the Citizens United decision would lead to a flood of advertising by independent groups. This did not appear to happen. In U.S. Senate races, the fraction of advertisements between September 1 and October 20, 2010, that were sponsored by independent groups, as opposed to candidates or political parties, was no greater in 2010 than in 2008 (see here ). In U.S. House races, this fraction did increase, from 8% in 2008 to 14% in 2010, but even then advertisements from independent groups were still a very small fraction of the total. It is difficult to determine whether these advertisements had any impact on specific races. Independent groups typically targeted the most competitive races, where the candidates and parties would also be campaigning heavily. The advertisements sponsored by independent groups may have been drowned out amidst the general din of the more numerous advertisements from candidates and parties.

The largest impact of Citizens United was psychological, not fiscal.  By declaring corporations should be treated as persons, many liberals reacted incredibly negatively to the decision.  This outrage was fueled by the news media that predicted a tidal wave of new money that would flood political campaigns as a result of the decision.  President Obama also gave voice to this outrage when he criticized the Court to some of their faces during his State of the Union Address.

In reality, the Supreme Court has treated corporations as persons for a long time.  One of Chief Justice John Marshall’s most famous (and praised) opinions held that corporations have the right to make contracts and have those contracts honored the same as contracts entered into by natural persons.  In 1886, the Supreme Court ruled that corporations can be treated as persons for purposes of the Fourteenth Amendment.  Even in the area of free speech, corporations have been treated as persons.  Why does Miller Lite have the right to claim their beer has more taste?  Because corporations have free speech rights, which include the right to make claims that are not objectively true.

If liberals want to channel their outrage at the Supreme Court’s corporate favortism, they should pay much more attention to the growing success that business interests have in arguing their cases before the Roberts Court.  And if liberals want to vent about a broken campaign finance system, they should be criticizing Buckley v. Valeo, not Citizens United. That was the case in which the Court declared that money was speech, and thus Congress could not limit campaign expenditures.  Limiting political contributions only gets you so far; limiting expenditures would be a much better solution to controlling the amount of money in politics.

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Fun with Google Ngrams

Supreme Court, Congress, President

Judicial Activism, Judicial Restraint

Positivism, Natural Law

Rational Choice

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