Robert A. Levine 4-15-14
What are the conservative justices on the Supreme Court thinking? First Citizens United and now the McCutcheon ruling. Do they honestly believe that wealthy people’s ability to spend money should be equated with free speech? Don’t they realize the unfair advantage this provides to affluent individuals who have more money to spend on political issues, whether it’s through Super PACs or direct contributions to parties and candidates? Or perhaps the justices don’t care about the advantage they are giving to wealthy citizens in our society, believing that those with greater capital deserve to have a greater say in the direction our so-called democracy takes.
Remember that the justices on the Supreme Court have not been elected by American citizens, but have been nominated by different presidents and confirmed by the Senate. With the split in the Supreme Court vote of 5-4 in both Citizens United and the McCutcheon ruling, it is interesting to note that those justices who equated money with free speech and voted in favor of the rulings were all nominated for the Court by Republican presidents. Justice Roberts and Alito were nominated by the second President Bush, Scalia and Kennedy by Reagan, and Thomas by the first President Bush. The dissenting justices in both Citizens United and the McCutcheon ruling were all nominated for the Court by Democratic presidents.
This split in the voting tells us something important about Supreme Court rulings? Decisions are not necessarily being made on the basis of precedents or law, but on the basis of politics. The justices on the court nominated by Republican presidents have provided the Republican Party and its candidates with two major victories by changing the way campaign financing will be handled, allowing those with more money to speak with a louder voice. These justices appear to be motivated by finding ways to help the affluent control the political process in America. And it strains credulity to accept that the justices did not have politics in mind when they made their rulings regarding campaign financing.
The Supreme Court is an anomaly in what is supposed to be American democracy. With the justices appointed to the bench for life and not answerable for their decisions to any other political body, they have become increasingly autocratic and driven by politics in their rulings. If this were not true, one would expect more decisions with political overtones to be supported by a mixture of Republican and Democratic appointees to the Court, instead the decisions being strongly partisan and decided in a straight party line.
Even though the Founding Fathers wanted the Supreme Court justices removed from political pressures by having life time appointments “during good behavior” and not answerable to any organization with oversight powers, this is clearly not working in today’s world where the Court’s decisions are politically motivated. One way to incrementally change this would be by having Supreme Court justices and other federal court justices appointed to specific terms in office. Probably a lengthy term of ten or fifteen years would be reasonable, as that would keep political pressures somewhat at bay. However, before being reappointed to the courts, the justices would have to have the support of the president and the Senate at that time, making it more likely that his or her decisions would be less politically driven, as the presidency or control of the Senate could reside in the hands of a different political party. Thus to get reappointed, the justice would probably have had to follow a more centrist track rather than adhering to partisan dogma in his or her decisions.
It is also possible that many justices would not be reappointed when their terms were completed and that there would be much greater turnover on the Supreme and other federal courts. This increased turnover and having a greater number of justices serve on the courts would be a positive step, as the chances for more varied decisions and less partisanship would increase.
Citizens United and the McCutcheon decision are now on the books injecting more money into the political process and giving the affluent a greater say in American politics. While this could be erased in the future by a different make-up of the Supreme Court, a constitutional amendment restricting contributions for campaign financing would be a better way to go, even though the current Court would view this as limiting free speech. Should wealth be the determining factor in promoting ideas and policies in political campaigns?