"What happens to a democracy when its highest court dedicates itself to defending privilege?" (E. J. Dionne Jr.)

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

-- E. J. Dionne Jr., in his WaPo column "The Supreme
Court’s continuing defense of the powerful"

by Ken

After I put up my Monday post on the last day of the Supreme Court term, I looked at the photo I included of Chief Justice "Smirkin' John" Roberts -- a happy choice, I thought, showing the chief in stomach-churning full smirk -- and the block of text that accompanied it:

"Laws like Arizona's matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand."

-- Chief Justice "Smirkin' John" Roberts, in his opinion
in Arizona Free Enterprise Club v. Bennett

And I kept thinking, somebody here is stark, staring nuts, and I don't think it's me.

Listen to the chief thunder away in high rhetorical "let freedom" ring mode against laws that inhibit robust and wide-ranging debate. How can you not want to stand and salute?

Unless, that is, you happen to have a working brain. Not necessarily a particularly good one, just a working one -- with, say, a measurable IQ. In which case you know that this is unmitigated bulldoody. The chief purports to be defending our sacred value of free speech, but of course he isn't at all. He's talking about the raw, and apparently undiminishable, brute force of money. And nobody with a functioning brain could under any imaginable circumstances confuse that with "speech."

With the exception of a small group of mental defectives who have found their way onto the Supreme Court and there enshrined as constitutional law that money is speech.

Now Smirkin' John, whatever else he is, is not an imbecile. He knows that this "laws that inhibit robust and wide-ranging debate" is a flat-out lie. There simply isn't any possibility that he doesn't. And so he lies. But then, he spends most of his time on the High Court lying -- lying in the service of the people who matter most to him, the people who can afford to buy the most "free" speech, apparently including his.

Similarly, when Nino Scalia clambered up on his high horse (poor horse!) earlier this week, striking down the California law seeking to end sales of especially violent video games to minors, an blithered in his usual bullying sarcastic (and of course cretinous) way about there being no difference in rights between children and adults, longtime NYT Supreme Court watcher Linda Greenhouse blogged the other day about this now-you-see-it, now-you-don't ability to recognize such differences. It's an interesting piece, but she got bogged down in speculation about the connection to traditional right-wing hatred of the Miranda decision and rule. I think that's way too specialized.

Throw out a challenged to orthodox social values, especially the right-wing ones, and the kiddies' rights will vanish faster than the speed of light. A case, say, about a school newspaper's right to publish without administration censorship. I admit I can't be absolutely sure about "Slow Anthony" Kennedy (though I wouldn't be terribly optimistic), but I don't think there's any question what tune the thug chorale of Scalia, Thomas, Roberts, and Alito would sing.

Because these thugs don't believe in the First Amendment. I actually heard some clown on NPR this morning talking about the just-completed Supreme Court term having been a big one for the First Amendment. No, it wasn't. They only use the First Amendment now as a weapon for forcing right-wing messaging upon the innocent. Right, like the rights of free expression of the powerful are in any danger of being infringed. Throw them a few cases where it's the rights of the powerless -- or even, probably, the marginally less powerful -- are at issue, and I think you'll see their Stalinist stripes come out of hiding right quick.

And the chance that Smirkin' John (or Clarence or Nino or Sammy) would ever do anything to actually encourgage "robust and wide-open political debate"? I believe the technical term is "slim to none."


E. J. DIONNE JR. ON THE COURT'S COMMITMENT
TO FREE SPEECH IN THE ARIZONA ELECTION CASE

This is the column from which I poached the lead for the top of this post, to which E.J. adds: "If you are a large corporation or a political candidate backed by lots of private money, be assured that the court’s conservative majority will be there for you, solicitous of your needs and ready to swat away those pesky little people who dare to contest your power."

He goes on to talk about the striking down of the Arizona adopted-by-referendum election law's provision of providing additional funds to candidates who accept public financing face big-spending privately financed candidates, with reference to Justice Elena Kagan's notably stinging dissent.

If you are a large corporation or a political candidate backed by lots of private money, be assured that the court’s conservative majority will be there for you, solicitous of your needs and ready to swat away those pesky little people who dare to contest your power.

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. But Arizona’s law, as Kagan pointed out, “subsidizes and so produces more political speech.” And then there was this shot at Chief Justice John Roberts’ majority opinion: “Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury.”

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.

Kagan and the dissenters stood up for free speech. Roberts’ majority defended paid speech. The dissenters want to allow candidates to talk; the majority wants to enhance money’s ability to talk.

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

Kagan archly 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.

I'm not doing justice to E.J.'s careful discussion of the ins and outs of the election-law case, so I hope you'll read the whole column. I'm more interested at the moment in the larger implications. Of course E.J. is on top of those as well:

[P]ay heed to how this conservative court majority bristles at nearly every effort to give the less wealthy and less powerful an opportunity to prevail, 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. 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.” Will the court now feel so full of its power that it takes on the executive and legislative branches over the health-care law?

In 1912, 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.”

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.

I don't see how it could be said better than that.

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