Our Corrupt Supreme Court

by Andy Schmookler

The Supreme Court in our times is troubled with more that an "appearance of corruption." With its recent decisions gutting the regulation of campaign finance, the majority on the Roberts Court has shown itself a partisan combatant on the side of a most dangerously corrupt form of injustice.   Justice should be understood as the antidote to the rule of power. When there is no justice, then we fall into the kind of world described by the ancient Athenians as they sought to compel a weaker people to do their bidding--  or else: "[Y]ou know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must"  Our founders' great contribution to human history was to devise a government to solve that problem. Saying that "all men are created equal," they established a system to equalize power among the citizens. With each citizen given an equal voice in deciding the nation's destiny through the election process- that equality would eliminate the dichotomy between the strong and the weak. That's the justice of our democracy. But here comes John Roberts and his majority - Republican appointees every one of them - telling us with a straight face that there is no problem of corruption (or even its appearance) unless there's outright bribery. That kind of quid pro quo of selling favors is, of course, already against the law. But anyone with half a brain can see that government can be bought without such blatant transactions. And these justices are not stupid. Can anyone honestly say, when we see presidential hopefuls trooping to Las Vegas to kiss the ring of a billionaire, that there is no appearance of corruption?

Andy Schmookler :: Our Corrupt Supreme Court

If all men are created equal, can it be justice for gross inequalities of wealth to be translated into equally gross inequalities of power in choosing our government?Having been in the political arena as a candidate for Congress, it is on the basis of real experience and direct observation that I can say: those who want to win elections in the American system are almost compelled to pay greater attention to those with the most money than to average Americans. If one looks for the spirit of justice, one will find it not in Roberts' opinion for the majority in this recent disgraceful decision in McCutcheon v. FEC, but in Justice Breyer's stinging dissent, where he talks about "grave problems of democratic legitimacy," about breaking the "necessary 'chain of communication between the people and their representatives," about  the "subversion of the political process" by having  money induce elected officials to "act contrary to their obligations of office." But Breyer spoke for the minority. It is of course the majority that defines the Court. And Roberts and his majority have turned justice on its head. Instead of making the law into an antidote to the rule of power, they have contorted the law to help the strong do what they can and compel the weak to suffer what they must. These campaign finance decisions are a disgrace. But they are not the first time in American history that the Supreme Court has disgraced itself. If one looks at the most disgraceful decisions in the Court's more than two centuries, something interesting reveals itself. In 1857, the Court handed down the Dred Scott decision, declaring that the black man has no rights the white man is bound to respect and that Congress had no constitutional authority to ban slavery from the territories. Here, too, the Chief Justice of the United States (Roger Taney) was willing to contort the law and to distort the history to reach the desired outcome of tearing down the barriers to the spread of the Slave Power. (For example, he conveniently disregarded the fact - pointed out by Lincoln - that many of those same people who wrote our Constitution had also banned slavery from the Northwest territories.) In 1896, the Court declared in -- Plessy v. Ferguson - that the brutal segregation of post-Civil War Southern society was in compliance with the 14th Amendment's requirement that all citizens be afforded "equal protection of the laws." The Court declared itself satisfied that "separate " was compatible with "equal." But of course they knew full well that the treatment of blacks was anything but equal, just as we must assume that the majorities in Citizens Unitedand McCutcheon know that big money is corrupting our democracy. Then in 2000, with some of today's disgraceful majority already on the Court, a partisan majority decided a presidential election in Bush v. Gore. There's good evidence that the five-person majority, in shutting down the quest for an honest count of the vote in Florida, understood that they were distorting the law to achieve the result they desired-clear because in the decision itself they warned against treating their logic as a precedent for use in future matters. Put all these decisions together with the Citizens United (2010) and the recent McCutcheon decisions, and we see that the same dark spirit is at work in each case. The kindredness of spirit is shown not so much in their disregard for the law to achieve a pre-determined result as in the nature of the results they sought. In each case, they sided with the interests of the strong over the weak. In each case, one might say, the Court acted in service of the Slave Power. That's literally so in the case of Dred Scott and Plessy (the spirit of Slave Power having be restored to dominance in the South even after the official abolition of slavery).  In the modern cases, the connection with enslavement - dominance and exploitation - is more metaphorical.  In Bush V. Gore the majority served the political side that represented the corporate system and the plutocracy, the side that was eager to give more than $1 trillion in tax breaks to the wealthiest, that would cripple the regulation of the financial system and protections for the environment, and would funnel more of our national wealth to big oil. In spirit, the Slave Power is back, and back in control of the Supreme Court. So long as these recent decisions stand, America seems destined to continue to evolve toward ever-greater control over our government by ever-greater concentrations of wealth, and the corresponding diminution of the political say, and the life prospects, of the many millions who toil for less than their fair share of the fruits of their labor. Circumstances change, but the patterns continue. And in our times, a dark pattern of injustice has taken over what is supposed to be the highest court of justice in the land. The question "What is justice?" is the overriding theme of the classical work that founded political philosophy:  Plato's Republic. The first answer given in Plato's famous dialogue is provided by a character named Thrasymachus. Depicted by Plato as a bully, Thrasymachus gives the infamous answer to the question, "Justice is the advantage of the stronger." Plato presents this unappealing man giving this unappealing answer in order to refute and discredit that argument. In America today, regrettably, the highest court in the land - the Roberts Court - has institutionalized the kind of justice - the very opposite of real justice-that Thrasymachus propounded.