Is this a legitimate question given several recent Supreme Court decisions? Are a majority of Justices shifting ideologically toward more “democracy” and/or less inclined to side with property and more with people?
The answers are an emphatic NO.
Last month, the High Court made two decisions upholding the federal Voting Rights Act by striking down laws in Alabama and Louisiana that discriminated against African Americans in the drawing of Congressional maps. In both cases, congressional districts were drawn (or “gerrymandered”) by state officials to concentrate as many African Americans in as few districts as possible. Both were clear voting rights wins!
In addition, the “Supremes” in another somewhat surprising decision ruled last week against North Carolina Republicans who used a fringe legal argument, called the “independent state legislative” theory, to defend the drawing of congressional maps that heavily favored Republicans in elections. The ruling affirmed the right of the state supreme court to consider suits challenging the clear gerrymandered legislative action. Another win for voting rights!
That’s about it.
Major Supreme Court decisions over the last two years have sided against the rights of and justice for people and the planet and toward those of power and property.
Last year, it was…
√ Prohibiting lawsuits against police for using evidence obtained without advising people of their rights.
√ Support of the NRA in expanding the ability of individuals to carry guns outside their homes.
√ Support of the North American Coal Company in limiting the ability of the EPA to regulate industrial carbon dioxide emissions, which leads to climate destruction.
√ Overturning Roe v Wade in Dobbs v Jackson, reversing 50 years of “settled law,” which allowed women to control their own bodies, supported by over 60% of the public.
This year, it’s been…
√ Support of a concrete corporation that makes it easier for companies to sue striking workers.
√ Overturning affirmative action in higher education, an essential step in redressing historic institutional racism.
√ Support of a business owner to discriminate against LGTBQ+ customers.
√ Blocking President Biden’s student loan forgiveness program which has provided up to $20,000 relief to millions of borrowers.
The Court’s majority are no torch-bearers of justice and democracy. The recent decisions protecting voting rights could simply be...
- a reflection of the blatant partisan and racial gerrymandering in the Alabama, Louisiana and N.Carolina cases,
- a response to the publish backlash from the Dobbs decision,
- the conscious effort to stem a declining belief in the legitimacy and confidence of the Supreme Court as an institution (reflected in the acceptance of gifts and other support by super rich individuals and/or corporate entities to Justices Thomas, Alito and Barrett, and the spouses of Thomas and Roberts)
- and/or increasing calls for Congressional action, including expanding the Court by 4 seats, to achieve an ideological balance.
Adding to the Court’s illegitimacy is the fact that three ”conservative” Justices who in many ways are out of step with the views of a majority of U.S. residents were appointed by a President who lost the popular vote. Institutionally, Justices are appointed for life, regulate their own behavior (including the disclosure of gifts from those who may come before the Court), are seemingly immune to accountability from anyone else, and have increased their “judicial review” power to make decisions on virtually anything.
The Supreme Court has a membership problem, but it also has a structural problem.
Both these problems are why we can’t depend on the Supreme Court to promote real justice and democracy.
When it comes to the prospect of whether the current Justices would overturn Citizens United, the reality is that:
- Three of the five Justices who ruled in favor of Citizens United in 2010 (Roberts, Alito and Thomas) are still members.
- Gorsuch has a long history of siding with big corporations and donors.
- Millions of dollars were spent by corporate interests and dark money groups to support the nominations of Kavanaugh and Barrett.
Voting rights are one thing. Corporate constitutional rights are altogether different. One person, one vote can be negated by a flood of money in elections and corporate rights that preempt democratically passed laws.
For Move to Amend, our strategy isn’t to file a lawsuit that works its way up to the Supreme Court to overturn Citizen United -- even if its members were inclined to support it.
- Corporate constitutional rights originated in the 1880s and money defined as free speech in the 1970’s. Citizens United expanded the political power and rights of corporations and the super rich, but both existed long before.
- The Court would likely rule very narrowly on any case challenging Citizens United to ONLY reverse Citizens United – meaning the doctrine of money as free speech would still exist.
- Even if the Court ruled to overturn Citizens United AND the doctrine that money equals free speech, corporate entities would still possess 4th, 5th and 14th Amendment constitutional rights that they effectively used from the 1880s to 1970s to concentrate their economic and political power. [Please watch Why we need the We the People Amendment for the multiple ways corporations wield their power to preempt our power beyond spending/investing money in elections.]
- If successful and using the same strategy, going to court to overturn other constitutional rights would likely have to be done one at a time. For example, a challenge to corporate 4th Amendment “privacy” rights would likely be ruled on, again, very narrowly to ONLY address/overturn corporate privacy rights, not other corporate constitutional rights. The one-at-a-time strategy, even if guaranteed to be successful, could take seemingly forever.
Such a strategy diverts time, energy and resources away from Move to Amends two-prong approach to:
- end ALL corporate constitutional rights and money as speech, not simply to overturn Citizens United, and
- build a grassroots movement to bypass the courts to pass the We the People Amendment (HJR54 in the current Congress).
This strategy does an end-run around the Supreme Court. It instead relies on the “court of public opinion” – the vast majority of the public that believes big money corrupts the political process and corporations are too politically powerful. It also relies on supporters like you who we believe are “supremely” capable to educate, advocate and organize for justice in all its forms, real democracy for the very first time and ensuring a planet that is habitable for all living beings.
Join us to collectively reach out to your Representative to co-sponsor HJR54 by going to https://www.movetoamend.org/118campaign
Joni. Jessica, Jason, Tara, Ambrosia, Katie, Shelly, George, Leila, Daniel, Saleem, Jennie, Keyan, Liam, Michael, Margaret, Alfonso, Dol, & Greg
- Move to Amend National Team