2010 "Person" of the Year: The US Supreme Court

It's difficult to look beyond the tumult of current events and ask,
"what happened this year that will be remembered ten, twenty, or fifty
years from now?" However, there was one 2010 event that, in terms of
its long-term impact, loomed above the others, the Citizens United
v. FEC Supreme Court Decision.

Writing in the NEW YORK REVIEW, law professor
Ronald Dworkin explained Citizens United v. FEC: "In the
2008 presidential primary season a small corporation, Citizens United,
financed to a minor extent by corporate contributions, tried to
broadcast a derogatory movie about Hillary Clinton. The FEC declared
the broadcast illegal under the BCRA [Bipartisan Campaign Reform Act].
Citizens United then asked the Supreme Court to declare it exempt from
that statute on the ground, among others, that it proposed to
broadcast its movie only on a pay-per-view channel." In an
extraordinary example of judicial activism, the Supreme Court
conservative majority, led by Chief Justice John Roberts, declared the
entire BCRA act unconstitutional.

The Supreme Court hadn't been the story of the year since the December
12, 2000, Bush v. Gore decision. This paved the way for Bush's
installation as President and his nomination of John Roberts as Chief
Justice in September of 2005. Many Supreme Court observers regard
Roberts as the judicial equivalent of the "Manchurian Candidate." NEW
YORKER legal analyst
Jeffrey Toobin noted Roberts dogmatic conservatism: "In every
major case since he became the nation's seventeenth Chief Justice,
Roberts [and his conservative allies] has sided with the prosecution
over the defendant, the state over the condemned, the executive branch
over the legislative, and the corporate defendant over the individual
plaintiff."

John Roberts had worked as an attorney for both the Ronald Reagan and
George H. W. Bush Administrations and, therefore, possible
conservative "judicial activism" was a concern of the Democratic
Senators that questioned him before confirmation. Roberts denied that
he was an activist and appeared to honor the legal tradition of
stare decisis, abiding by precedent. Five years later, it's
apparent that Roberts hid his true philosophy.

In the Citizens United decision Roberts aggressively advanced
the conservative agenda along three fronts. First, the decision to
hear this case was an extraordinary example of judicial activism.
Professor Dworkin observed, Citizens United "did not challenge
the constitutionality of [BCRA]. But the five conservative
justices--Chief Justice Roberts and Justices Samuel Alito, Anthony
Kennedy, Antonin Scalia, and Clarence Thomas--decided on their own
initiative, after a rehearing they themselves called for, that
they wanted to declare the act unconstitutional anyway." [Emphasis
added] Justice Kennedy, who wrote the majority opinion, explained
that the conservative justices called for the rehearing because they
had dissented on the most pertinent precedent, McConnell v.
FEC, and had continued to complain about it.

Second, the Citizens United decision strengthened the
conservative contention that corporations have "personhood" and,
therefore, enjoy the same rights as ordinary individuals, including
the right of free speech. (For a compelling account of how the
bizarre notion that corporations enjoy the same constitutional rights
as human beings has evolved, see radio host Thom Hartmann's book,
Unequal Protection.)

Third, the Citizens United decision allowed corporations to
spend unlimited funds in political contests. It was this aspect that
caused President Obama to observe, during his January 27, 2010, State
of the Union Address, "The Supreme Court 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." The decision granted corporations more rights than those
of human beings.

The 2010 midterm elections demonstrated the lethality of the
Citizens United decision. The non-partisan group, Opensecrets.org calculated that, excluding Party Committees, $294
million was spent by outside groups. Conservative outside groups
spent twice as much as did Liberal groups. For example, the US
Chamber of Commerce, a conservative-leaning outside group, spent $32.8
million, more than the combined total of the two leading Liberal
groups: the SEIU ($15.7 million) and the AFSCME ($12.6). (The
McClatchy Newspapers reported that the US Chamber, which has foreign
corporations as members, expected to spend more than $75 million in
all forms of political support.)

Massive spending by outside groups influenced the outcome of the
midterm election. In the Pennsylvania Senate race, outside spending
was more than $12 million: $5.9 million was spent on ads attacking
the Democratic Candidate (Joe Sestak), whereas only $1.9 was spent
attacking the Republican (Pat Toomey); Sestak lost. In Illinois, $6.2
million was spent attacking the Democratic candidate (Alex
Giannoulias), whereas only $1.5 million was spent attacking the
Republican (Mark Kirk); Giannoulias lost. There are many similar
examples, including outgoing New York Democratic Congressman John Hall who attributed his defeat to the
decision.

We've entered a new phase of American history, the Corporatist
period where multinational corporations have unbridled political
influence. This movement started before the Citizens United
decision but the Roberts' Supreme Court has accelerated the pace and
thereby profoundly weakened our democracy.