Despite the cynical barbs from President Trump and ideologues on the left and right, Chief Justice John Roberts was right in asserting that there are no such things as “Trump” judges, or “Obama” judges. After 55 years of winning and losing bitterly contested constitutional cases in the federal courts on behalf of the ACLU and the Brennan Center for Justice, I am certain that almost all federal judges, no matter who appointed them, would pass a lie-detector test about their honest efforts to avoid political partisanship.
Nonpartisan judges do not, however, translate into apolitical judging. In many cases, especially the great constitutional cases that have shaped — and will continue to shape — our democracy, strictly legal arguments do not produce a clear winner. In such cases, judges must choose between the Constitution’s two cardinal values — respect for individual autonomy, which conservatives find especially compelling, and respect for individual equality, which liberals find especially compelling.
These challenging cases include modern First Amendment fights over hate speech, efforts to curb the political power of the rich, and assertions of religiously-based exemptions from civil rights laws. With powerful legal arguments pulling autonomy and equality in different directions, a judge’s values must kick in to break the tie.
That’s what happened in the appalling line of Supreme Court campaign finance cases that include Citizens United, decided 10 years ago this month. Precedents began in 1976 with Buckley v. Valeo upholding legal arguments protecting the autonomy of wealthy individuals under the First Amendment’s free speech clause to spend unlimited sums to influence an election, even when such unlimited spending power makes a mockery of political equality. It continued in 2010 with Citizens United, extending a First Amendment right to spend unlimited sums to buy political influence to corporations, even when such unlimited corporate spending power threatens to mortgage the democratic process to the short-term, profit-driven needs of big business. As proof, it culminated one year later in the disaster of Arizona Free Enterprise Council, invalidating efforts to use public funding to even the political playing field by matching the spending of wealthy, privately funded candidates.
Cutting through the miasma of legalese surrounding the campaign finance cases, what really happened was that powerful First Amendment legal arguments protective of autonomy repeatedly defeated equally persuasive legal arguments designed to preserve a modicum of political equality in American democracy. What began in 1962 in Baker v. Carr as an equality-driven command by a Supreme Court largely appointed by Democratic presidents to respect “one person-one vote” has morphed today into an autonomy-driven command by a court appointed primarily by Republican presidents with a tendency to worship “one dollar-one vote.”
Just don’t mistake it for an exercise in law. There’s perfectly good law on both sides. At each step, the process has reflected the tendency of conservative justices to find legal arguments advancing political autonomy more persuasive than powerful legal arguments advancing political equality.
Back in 1976, with conservatives in control of the court, most of the Justices thought Buckley was easy, a case protective of both autonomy and equality. The poorly drafted 1974 law before the court in Buckley was Draconian in its suppression of political autonomy, limiting individuals to spending less than the amount needed to buy a quarter-page advertisement in a large newspaper, and starving the electoral process of the funds needed to make the process work fairly, especially for challengers to entrenched incumbents. Not surprisingly, the conservative justices couldn’t wait to embrace powerful First Amendment legal arguments wiping out such an interference with political autonomy. The liberal justices in Buckley, led by Justice William Brennan, were also justifiably offended by the unnecessarily harsh limits on political autonomy imposed by the 1974 law, especially since those limits threatened political equality (i.e. the ability of challengers to compete). They were, moreover, comforted by the possibility of using public funding to advance political equality.
By the time Citizens United was decided in 2010, the five sitting conservative justices were besotted with protecting political autonomy, no matter what the consequences to political equality. The four liberal justices in Citizens United mounted a spirited but doomed defense of political equality, seeking to prevent corporations from being treated as though they were human beings vested with dignity-based rights of First Amendment political autonomy. Predictably, the liberals lost 5-4.
If anything, the legal arguments advancing equality in Citizens United seemed stronger than the legal arguments seeking to vest corporations with dignitary political rights. It’s not easy to shoehorn a dignitary soul into a corporate body. The conservative justices were able to finesse the problem by claiming to be acting on behalf of human hearers of corporate speech, not the corporate speakers. Unfortunately, no one asked the fictive hearers whether they wished to be bombarded by unlimited doses of corporate political propaganda.
While the legal arguments in Citizens United against the corporations seemed stronger than the legal arguments in favor of unlimited corporate political speech, the majority’s First Amendment legal argument is not without legal force. To this day, I have not been able to persuade the ACLU to repudiate Citizens United. The real problem with Citizens United is not legal. It is political.
Citizens United envisions a world where the autonomy of the strong, masquerading as respect for the First Amendment, crushes the equality of the weak. Whether the issue arises in the context of hate speech, campaign finance reform, or religious exemptions from civil right statutes, until justices who care about equality as intensely as they care about autonomy regain control of the court, legal ties will continue to be broken in favor of the autonomy of the strong.
Burt Neuborne is a professor of civil liberties at New York University Law School, founding legal director of the Brennan Center for Justice, and author of “When at Times the Mob is Swayed: A Citizen’s Guide to Defending Our Republic.”