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OpEdNews Op Eds    H2'ed 1/27/10

Five Supreme Court Judges Do Da Corporate Takeover Hustle, And They Must Be Stopped

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This the second in a series of action alerts about the fundamental willful and pernicious errors underlying the decision by 5 agenda driven right wing judges on the Supreme Court to gut all restraints on corporate meddling in our elections. Each of these successive alerts will analyze additional derelict aspects of this shameful and truly dangerous decision, to further demonstrate why we the people must speak out and act to reverse it.

In the first alert we made the triable case (which no attorney has written us to dispute) that failing to even bother to distinguish between domestic and foreign owned corporations, and knowingly leaving America vulnerable to the latter BY their ruling, was de facto an act of treason by The Supreme Court 5.

This alert will focus on their abandonment of every prudent rule of judicial review, in favor of haste and the most extreme form of judicial activism, again with specific page number references to the opinion itself.

There are TWO critical action pages related to this, which we are asking each of our participants to submit and also pass on to everyone you know, which will send your message by fax to all your own members of Congress, and President Obama too. You do not need your own fax machine to participate, the action pages do all this for you automatically in real time.

Action Page: Corporations Are NOT The People

Action Page: Impeach The Supreme Court 5

The most bedrock principle of appellate review is that first an appellant must have PRESERVED the issue for appeal, by arguing and getting a ruling on the point of law from the court below, necessitating fact finding by the lower court to create a "record". Innumerable appellants since the beginning of time have had the door to review slammed in their face with the admonition that if they HAD preserved the issue then and only then could a higher court review it.

And in particular, appellate courts have traditionally been loathe to making their own findings of fact (and only in a corrective way) absent very clear error by the Court below, which is as it should be. The role of a higher court is to apply the law to the facts, and make rulings of what the LAW is, not make their own findings of fact. And this is supremely true of the Supreme Court.

So even beyond the outrageousness of the result, it is at least outrageous the way it was reached, and how that reach was justified. As justification, The Supreme Court 5 asserted that some legal emergency existed requiring a broader inquiry in this case, resurrecting a claim already ABANDONED by the appellant in the court below (opinion p. 12). Why directly overturning precedents at least 20 years old would suddenly be such an emergency they do not explain.

And when you actually read the opinion, the only pressure really on the Supreme Court was because so-called Citizens United was bound to LOSE on the case they did preserve (opinion pp. 10-11). The Supreme Court 5 wanted that party to win. This was in itself an over the top act of judicial activism. But even beyond that they were hell bent on undoing as much as 100 years of campaign finance regulation (Stevens' dissent p. 3). Even the most conservative commentators agree this is what they have in fact done.

Appellate courts have been known on occasion to comment (in no binding way) that if an appellant HAD made a particular argument they might have been receptive to it, a kind of higher court invitation for someone to bring an actual case, an actual "controversy". And then there would be a factual record in some subsequent case. But here there was no controversy on the issue on which the ruling was based, for it had already been WAIVED a priori, thereby denying the Supreme Court any jurisdiction to rule on it (Constitution Article III, Section 2, Clause 1).

But even further assuming that the Supreme Court was justified in reopening a can of worms already discarded, the appropriate procedure would have been to return the case to the lower court with instructions, what is called a "remand", and which is done all the time after a ruling of LAW, for the court below to make findings of fact and conduct further proceedings, so that there would be a factual record for them to review, should the appellant wish to appeal to the higher court again in the case of an unfavorable ruling by the lower court.

All these prudent judicial things are exactly what the Supreme Court 5 did NOT do. Instead, they called for hurry up further briefing on the new question of law THEY wanted to rule on (Stevens' dissent p. 4), in a vacuum of insufficient facts to make those arguments of law. Instead, they set a scary new purported standard of review that says they basically can make rulings on any point of law THEY want to raise, whether developed in a lower court by an appellant or not.

This is truly frightening! It means that these five absolute dictators in black robes have now asserted the unheard of prerogative to make their own law pretty much any time they like, if only tangentially related to appellant's actual arguments on appeal (opinion pp. 13-14), a profoundly dangerous NEW standard, to become a new stare decisis if not immediately challenged and reversed by their removal from office. It means they now assert unchecked prerogative to make their own findings of fact whenever necessary to reach the result THEY want to reach.

And they must be stopped. The Supreme Court 5 must be impeached before they go even further off the deep end. Whatever else within the law that Congress can do to counteract this decision must be done, and to make sure such a thing can never, ever happen again.

So please submit both action pages above now. The next alert in this series will analyze the totally bogus basis of the so-called facts the Supreme Court pulled out of sheer hot air in this case.

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