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Reversing Citizens United: stripping the Roberts 5 of power over elections

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The four most extreme judges among the Roberts 5 would be handicapped as hypocrites willing to distort rules to reach results for their favored class should they deny Congress' Exceptions Clause authority in the context of restoring the political question doctrine after upholding it in the far more extreme and unjustified context of suspending habeas corpus in Boumediene. There is no reason to believe they are above engaging in such hypocrisy, however.

The fifth judge, Kennedy, who wrote the Boumediene decision, would not necessarily be a hypocrite if he were to refuse to enforce a jurisdiction-stripping law, but is nevertheless unlikely to risk prison or impeachment for the sake of empowering plutocrats.

Some hold an absolutist view of judicial supremacy that exceeds even Justice Marshall's view in 1803.  Law professors or lawyers whose self-importance is tied to their intellectual influence on an all-powerful but unelected Court may believe the court is invested with infallibility from some higher source. They may argue that it is not proper for Congress to exercise its Exceptions Clause authority over the Court. So will some unprincipled Republicans. But Republican presidential candidate Gingrich recently issued a fairly well-researched position paper stating a reasonably complete legal case against judicial supremacy, while also containing some brief insertions of glaring flaws and factual errors with respect to the proper application of Congress' powers over the Court. It is Republicans who have been the most aggressive in exercising Exceptions Clause authority in a variety of circumstances, while liberal Democrats are strangely susceptible to the anti-democratic judicial supremacy ideology. Republicans like Gingrich will also have the weakness of hypocrites if they were to oppose Congress' coercive exercise of power over the Supreme Court on the subject of election integrity.

Prof Keith E. Whittington, in his award winning history of judicial supremacy, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (2007) criticizes the myth of judicial supremacy in his discussion of the maintenance of the constitutional system that is the whole country's heritage, not just that of judges and lawyers. 

"[S]ensible claims on behalf of the utility of judicial review for maintaining constitutional forms have been transmogrified into a demand for judicial supremacy. ... Constitutional maintenance becomes a bloodless and technical enterprise best conducted by the legal intelligentsia.
"This vision of constitutional maintenance is neither desirable nor realistic. Constitutional maintenance is above all a political task. As such, it must be considered in political terms. Constitutions cannot survive if they are too politically costly to maintain, and they cannot survive if they are too distant from normal political concerns."  

The Court-mandated system of money in politics is a question of Constitutional maintenance. It would be far too costly to have to enact a constitutional amendment when the Court itself creates a doctrine based on a view of speech that defies the country's universal (95%) understanding that big money enters politics for the sole purpose of the large financial returns that it earns by corrupting government, not to enhance legitimate public debate of issues.

Roosevelt challenged "a judiciary so independent that it can deny the existence of facts which are universally recognized." Senator Robert "Fighting Bob" LaFollete, in defending Roosevelt's "court-packing" proposal complained "the Court ... has become a dictator and we have succumbed to a fascist system of control." (Shesol 350)

Because there must be limits on a Court with a political agenda, like the current Court, its authority must be subject to democratic control. Prof Whittington recounts the indisputable fact that judicial supremacy has been, throughout American history, a political not a legal question. That is why Congress was given the power to respond to political demands with a simple law. It is a political question whether a comfortably corrupt Congress can be forced to use that power.

Judicial supremacy is a political ideology that runs deep in the "legal intelligentsia" who are empowered by it. When applied to support judicial decision of political questions (i.e. judicial exercise of legislative powers) against Congress' constitutional power to change those decisions, the ideology becomes clearly hostile to democracy.

Some, like Prof. Lessig, apparently blinded by the myth of judicial supremacy yet credibly concerned about the Court's politicized elections decisions, have leveled a broad ranging attack on the Constitution, rather than the Court.  He's like a drunken brawler who defends himself by punching an innocent bystander.  Other misguided advocates similarly claim the Constitution needs amending. Such a strategy is orders of magnitude more difficult than winning and enforcing jurisdiction-stripping legislation that would also restore and complete campaign finance legislation which is currently unenforced as unconstitutional.

Asking the Supreme Court politely to look at a new constitutional text when illegitimately deciding political questions will not itself predictably get money out of politics, compared to comprehensive integrity legislation that simultaneously removes the Court from the field.

The Constitution nowhere grants the Court power to entrench a plutocracy, or to resist Congress's stripping of its jurisdiction in order to continue doing so. Whittington shows that the solution lies in politics, and a political opposition aimed directly at an overreaching Court, not diverted away to adjusting constitutional arrangements and wordings that are not directly enforceable and would be interpreted by the same offending judges and would have the effect of justifying and ratifying their violation of the separation of powers.

The existing arrangement of power relations under the Exceptions Clause provides a legitimate direct channel for immediate political struggle without the need of taking an extended misguided detour into rewriting the Constitution which will make no reform in and of itself, and might well be used by the Court to undercut the complete solution contained in the 1789 Constitution.

Forcing Congress to use its Exceptions Clause authority will admittedly require a powerful, even unprecedented, political struggle, albeit considerably less than it would take to wage the illusory campaign to change the Constitution. It was true in 2003 that "[a]t least since the 1930s, no bill that has been interpreted to withdraw all federal court jurisdiction with respect to a particular substantive area has become law." Richard H. Fallon, Jr. et al., Hart and Wechsler's the Federal Courts and the Federal System 322 (5th ed. 2003). This period defined the era of the Court's highest prestige which it is now time to bring to a rapid close.

Times have changed. The Roberts Court should not be allowed to spend any more of the valuable political capital accumulated over 40 years since the New Deal by the dedication of far more prestigious judges who realized much of the Constitution's promises of justice, equality and democracy, a magisterial heritage which was perpetuated on a delicate balance like a teetering bicycle for an additional 30 years by its own momentum. The Roberts 5 politicians in robes now in control of the Court both exploit and embarrass the Court's prestigious heritage. The political capital is exhausted.  The bicycle is on the ground. The Roberts 5 need to be exposed for the outright enemies of the Constitution and agents of plutocracy that they are, and denied the respect they inherited from their predecessors without earning it.

Their unconstitutional decisions, flaunting precedent, undermining democracy, installing tyranny, have made them subject to the Exceptions Clause power that remained dormant throughout the preceding era of a largely democratic judiciary.

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A creative thinker on matters of public policy and art, and a principal researcher. Current focus of work is on the strategies democracies can use to protect against overthrow by corruption, with immediate attention to the mess being made by (more...)
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