EJ Dionne's Quest to Find the Constitution

The Supreme Court’s continuing defense of the powerful

By E.J. Dionne Jr., Published: June 29

The United States Supreme Court now sees its central task as comforting the already comfortable and afflicting those already afflicted.

I’m sure John Roberts and Antonin Scalia got together with the Koch brothers and said “You know what? To hell with this whole Constitution thing. I’m here to make you guys more money…Wait, you don’t own Wal Mart? Or AT&T? And you’re not running for office in Arizona? Fuck it, we’re helping them anyways because I can’t resist the opportunity to oppress women, minorities, and disenfranchise the poor.”

If you are a large corporation or a political candidate backed by lots of private money,

Because private money is far more nefarious than public money, after all.

be assured that the court’s conservative majority will be there for you,

Man, that second person construction is really clumsy. (Obviously it’s brilliant when I do it though.)

solicitous of your needs and ready to swat away those pesky little people who dare to contest your power.

Notice he hasn’t invoked the Constitution or constitutionality yet. I’m starting a raffle to see how many words he writes before he does so. I’m taking the first bet at 527 words.

This court has created rules that will have the effect of declaring some corporations too big to be challenged through class actions, as AT&T customers and female employees at Wal-Mart discovered.

That ruling, of course had nothing to do with the size of the company and everything to do with the requirements guiding the formation of a class. The Supreme Court simply said that working for Wal Mart and having a vagina did not entitle one to claim compensation for alleged discrimination of a handful of employees. AT&T was about contractual clauses that waive the right to legal recourse.

And remember how sympathetic conservatives are supposed to be to the states as “laboratories of democracy,” pioneering solutions to hard problems?

Yeah. Plus, it gives me an excuse to link to this article. (http://online.wsj.com/article/SB10001424052702304070104576398072003438908.html)

Tell that to the people of Arizona.

I know; they’re still pissed off about the Justice Department’s challenge to their immigration laws.

They used a referendum to establish a highly practical system

Highly practical? I get that he’s trying to sell me on the law before he’s even explained it, but it just comes off as pleading and needy.

of financing political campaigns that the court, in a 5-4 decision Monday, eviscerated. It was designed to reduce corruption and give a fighting chance to candidates who decide to forgo contributions from special interests.

It was also unconstitutional and ill-conceived.

The people acted, noted Justice Elena Kagan in a brilliantly scalding dissent,

Quite clearly, she’s the smartest person in the room.

after a scandal in which “nearly 10 percent of the state’s legislators were caught accepting campaign contributions or bribes in exchange for supporting a piece of legislation.”

That sounds like a good time to start criminal prosecutions against legislators and lobbyists, not to change campaign finance laws. More importantly, though, this little nugget of irrelevance has absolutely nothing to do with the Constitutionality of the law. Elena Kagan, being a Supreme Court justice and the smartest person in the room, should probably focus more on that pesky old parchment.

Under Arizona’s “clean elections” initiative, candidates who raised a modest amount in very small contributions could receive a lump sum of public money. They could raise no further private funds.

It’s a campaign finance two-fer: convoluted and idiotic.

No candidate had to join the public system. But if a privately financed candidate or the interest groups supporting his or her campaign started outspending one who was publicly financed, the public system came to the rescue with additional cash so the “clean money”

What did I tell you about liberals and public money? They think private money is dirty and public money is clean.

candidate wouldn’t be blown out of the race by lethal dollar bills.

In other words, public funds would be used to put a finger on the scale of an election based on one candidate’s fundraising prowess. How is the unconstitutionality of this even a question?

Why was this important? Kagan was spot on: “Candidates will choose to sign up” for public funding “only if the subsidy provided enables them to run competitive races.”

Again, as the ever-so-brilliant Kagan fails to mention, precisely none of this has anything to do with the Constitution. What’s more, it appears that she is actively advocating that public funds be systematically used to make races competitive for certain candidates based on arbitrary criteria. Which is flat-out crazy-illegal.

Such breathtaking common sense

It’s like he lacks the ability to filter information critically.

has been missing from the majority’s recent campaign finance decisions —

The Supreme Court foolishly decides to base its rulings on the quaint notion of Constitutionality. What rubes!

notably its Citizens United ruling, also a 5-4 conservative ukase,

I think it would help if he read his columns aloud to himself. Maybe he’d catch on to some of this nonsense, like arguing that a 5-4 vote in the United States Supreme Court is best described as a czarist decree. This when we actually have scores of czars in the executive branch!

allowing our poor, beleaguered corporations

I’m picking up on your sarcasm here, although it was very subtly crafted.

to expand their power in American politics.

Again, the Supreme Court has no business regulating someone’s power except in the context of whether or not it adheres to the Constitution or if it pits two legal precedents against each other.

Here’s the stunning part:

That you still haven’t mentioned the Constitution? At all? 363 words and 2300 characters in?

For years, opponents of campaign finance reform have accused those who want to repair the system of trying to reduce the amount of political speech.

And rightly so.

But Arizona’s law, as Kagan pointed out, “subsidizes and so

I don’t know if this is a typo or legal jargon. Either way, I forgive her because she’s the smartest person in the room.

produces more political speech.”

Yes, but it promotes only one side’s political speech. With public funds.

And then there was this shot at Chief Justice John Roberts’ majority opinion: “Except in a world gone topsy-turvy,

Our Supreme Court justices are writing their opinions with pettiness last seen in an episode of Degrassi. Thanks for giving me an excuse to reference Degrassi, Elena. Now everyone knows that I watch Teen Nick.

additional campaign speech and electoral competition is not a First Amendment injury.”

Judge’s ruling? Judges?

No, citing the First Amendment in a quote whose main purpose was to dismiss First Amendment concerns does not qualify as a Constitutional invocation. Sorry, EJ. Keep trying, though.

Indeed, Roberts had to argue that those terribly downtrodden candidates financed with private money had their speech “burdened,” simply because their publicly financed opponents had the means to respond.

No. Because their opponents were given the means to respond. By the state. Who took it from the people. Approximately half of which oppose the candidate to whom their public money was funneled.

Kagan and the dissenters stood up for free speech.

Yeah, but they only stood up for free speech for one side. The other guy’s still got to pay.

Roberts’ majority defended paid speech.

Paid, yes. But paid equally by both sides with equality under the law.

The dissenters want to allow candidates to talk; the majority wants to enhance money’s ability to talk.

I’m sorry, I don’t speak bumper sticker.

I do speak rock, though. (http://www.youtube.com/watch?v=Je7MqES4Wfk)

Roberts was especially exercised over any notion of “leveling the playing field” between private-money candidates and their challengers.

He was “exercised” over the notion of using the government as a mechanism of leveling the playing field. And if you believe that government should play a more expanded role in determining those elected to operate the government, well, you might just think Elena Kagan’s the smartest person in the room.

He even included a footnote calling attention to the Citizens Clean Elections Commission’s Web site, which once said the law was passed “to level the playing field when it comes to running for office.” Horrors!

Unlike virtually everything that you’ve noted in support of Elena Kagan, Roberts’ focus on the effort to “level the playing field” actually does have legal and Constitutional relevance as it clearly demonstrates that the law necessarily favors only one side at the expense of the other.

Kagan archly

How many adjectives do you think Dionne had to look up to adequately fellate Kagan in this article? Probably not enough. She is the smartest person in the room.

noted the “majority’s distaste for ‘leveling’ ” and then dismissed its obsession, observing that Roberts failed to take seriously the Arizona law’s central purpose of containing corruption. Leveling was the means, not the end.

Which, of course, is wholly irrelevant and kind of stupid. The Supreme Court exists to pass judgment on the means, not the end. Golly gee, I’m starting to wonder if Elena Kagan really is the smartest person in the room.

Nonetheless, pay heed to how this conservative court majority bristles at nearly every effort to give the less wealthy and less powerful an opportunity to prevail,

Want to “prevail” in an election? It’s not complicated: raise more money.

whether at the ballot box or in the courtroom. Not since the Gilded Age has a Supreme Court been so determined to strengthen the hand of corporations and the wealthy.

Still, not a single word about the Constitution. Not one.

Thus the importance of the Wal-Mart and AT&T cases, the latter described by the New York Times as “a devastating blow to consumer rights.”

Golly, EJ. Thanks for bringing the reader up to speed on what the hell you’re talking about. There were actually two AT&T cases on the docket this year. The first was Talk America v. Michigan Bell Telephone. The second, and presumably the one to which you’re referring was AT&T v. Concepcion, which simply held that when signing a contract, the fine print matters.

Will the court now feel so full of its power that it takes on the executive and legislative branches over the health-care law?

Yep.

In 1912,

Very timely.

Theodore Roosevelt warned that the courts had “grown to occupy a position unknown in any other country, a position of superiority over both the legislature and the executive.” Worse, “privilege has entrenched itself in many courts just as it formerly entrenched itself in many legislative bodies and in many executive offices.”

Go back to hunting moose with large rocks, Teddy. We’ll call you when we need to invade Cuba.

What happens to a democracy when its highest court dedicates itself to defending privilege? That’s the unfortunate experiment on which we are now embarked.

It’s over. Not once. NOT ONCE. Not in 763 inglorious words did E.J. Dionne mention the Constitution. Nor did he mention relevant case history, or other relevant laws. Instead, he yielded to the most inflammatory and least technical areas of Elena Kagan’s dissent. (I assume that she, at very least, provides some actual substance at some point in her dissent, but Dionne seems to go out of his way to avoid them.)

This is like watching a game of football with a rabid fan. His team gets flagged for pass interference. Aghast, he cites the unfairness of the referees when the last three penalties have gone against his team. You ask him to look at the replay. The defensive back practically mugged the receiver; it’s clearly pass interference. Last time it was clearly an illegal procedure penalty for too many men (err…women. Err…players) on the field, and the time before that it was an obvious holding call. “That’s not the point.” He says defiantly. “We keep getting screwed.”