Tax Lawyer's Blog

Last night President Obama did something I have not seen a President do before in a State of the Union address. He reprimanded the Supreme Court, a co-equal branch of the federal government, for handing down a decision (Citizens United) with which he personally disagrees:

Last week, the Supreme Court reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.

It was highly inappropriate (like a Congressman shouting “you lie”, perhaps?) and an affront to the Constitution (the separation of powers) for the President to reprimand the Supreme Court in a State of the Union address. But what rankled me even more than the fact of his condemnation was the substance of his criticism. The President did not attack the reasoning behind the Justices’ decision in Citizens United – which is the only thing that should matter to a Supreme Court Justice - but rather, the result.

Mr. Obama is a former Harvard constitutional law professor and knows that the speculative result of a Supreme Court decision is not the standard by which high court rulings are to be judged. It’s only the legal reasoning that matters. If he believed otherwise, he would favor Court rulings that allowed the U.S. to torture terror suspects in order to gather information about pending terrorist attacks. But he doesn’t, and he shouldn’t.

There is an upside to the President’s criticism, however. It highlights the problem conservatives have with the constitutional jurisprudence of liberals. You see, liberal constitutional law experts, like the President, tend to approach constitutional law questions by reasoning from the ground up.¹ They begin with a predetermined result in mind (i.e. allowing corporations to speak out in support of or opposition to political candidates is bad for the country) ² and then formulate a legal theory to support that result (the panoply of protections provided by the first amendment do not apply to corporate speech).³

This approach is precisely backwards. Supreme Court justices should be faithful to one thing and one thing only: The law. They’re not allowed mistresses.

And if they do have them, they are legislating-from-the-bench and should lose their Nike endorsements.

Suggested Reading:

For more on the results-oriented approach to constitutional jurisprudence I suggest you read George Washington University Law Professor Orin Kerr’s blog post titled An Unfortunately Common Type of Law Review Article and Justice Scalia’s 2005 address at the Woodrow Wilson International Center for Scholars titled Constitutional Intepretation the Old Fashioned Way.

Footnotes:

¹  Liberal legal scholars justify their approach by referring to the U.S. Constitution as a “living, breathing document.” In my mind, this is just codespeak for “we’ll tell you what the Constitution should say.”

²  A Supreme Court Justice is appointed, not elected. He serves for life and, therefore, is not directly accountable to the electorate. If he allows any personal bias as to what the law should be to creep into his decision-making process, he violates his oath to uphold the Constitution:

I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Supreme Court Justice under the Constitution and laws of the United States. So help me God.

Any reasonably intelligent person lacking an overriding personal or political agenda would acknowledge that it’s highly undemocratic to allow unelected, life-time tenured jurists to decide what the law should or should not be?

³  Justice Scalia, concurring with the majority, rightly points out that the First Amendment protects “speech” not categories of “speakers”:

The Amendment is written in terms of “speech,” not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals—and the dissent offers no evidence about the original meaning of the text to support any such exclusion.

We are therefore simply left with the question whether the speech at issue in this case is “speech” covered by the First Amendment . No one says otherwise.

A documentary film critical of a potential Presidential candidate is core political speech, and its nature as such does not change simply because it was funded by a corporation. Nor does the character of that funding produce any reduction whatever in the “inherent worth of the speech” and “its capacity for informing the public,” First Nat. Bank of Boston v. Bellotti , 435 U. S. 765, 777 (1978) .

Indeed, to exclude or impede corporate speech is to muzzle the principal agents of the modern free economy. We should celebrate rather than condemn the addition of this speech to the public debate.

It’s irrelevant that the President fears the consequences of the Court’s ruling. What matters is that the Amendment’s unambiguous words demand it. No reasonable person could possibly construe the language of the First Amendment in such a way that allows the banning (or restriction) of speech based solely on the identity of the speaker.

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