The Fifth Justice

What does it mean to replace Justice Scalia with a justice appointed by a Democratic president? The Democratic presidents have been much more successful than Republican presidents in appointing justices who embrace important Democratic policy positions. The justices have life tenure, of course, but that does not mean that they can always divorce themselves from their own personal views. If the justices were as objective as a computer program, we could replace them with a computer program.

If we look at a few recent cases and the reasoning of the four dissenters, we will see that it means a lot—not just because of the result in the particular case but because the reasoning the dissenters have used portend significant changes in the law if those views are in the majority.

One case on everyone’s short list is Citizens United v. Federal Election Commission (5 to 4). It held that individuals could spend their own money to engage in political speech even if they organized in corporate form. The corporations could not give contributions to political campaigns, but they could buy their own ads to publicize their own views. The Court treated their ads the same way it treats the editorials of newspapers (also incorporated entities)—as protected free speech.

When Justice Kagan was solicitor general, she argued Citizens United. Her reasoning was, shall we say, mind-boggling. She admitted that the government could not censor books, but she insisted it could censor pamphlets! A silly distinction, but I’m not making this up. Her reasoning would allow the government to ban the 1776 pamphlet that Thomas Paine published anonymously, Common Sense, the intellectual justification for the Revolutionary War. George Washington had this pamphlet read aloud to his troops during the war. Kagan seriously argued that the government that Washington and Paine created could ban the pamphlet that Paine published.

The dissent fully embraced Kagan’s argument and added that the First Amendment should not apply to corporations. Newspapers should take note. The First Amendment limits federal power over speech. It says nothing suggesting that Congress could restrict corporations. It just says that Congress shall make no law abridging the freedom of speech or the press. If the dissent in Citizens United becomes law, expect more silly distinctions.

By the way, at her confirmation hearing, then-Solicitor General Kagan spoke about respecting precedent, did not suggest that she would overrule Citizens United, and added that positions she took as solicitor general were separate from her personal beliefs or the beliefs she might espouse as a judge.

After Kagan joined the Court, it decided American Tradition Partnership v. Bullock (per curiam) (5 to 4). A Montana state law provided that a corporation could not spend money to advertise its views about political issues. The Montana Supreme Court explicitly rejected Citizens United and refused to invalidate this state law. The U.S. Court summarily reversed. “The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U.S. Const., Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case.”

Justice Kagan joined Justice Breyer, who spoke for the four justices in dissent. Justice Kagan, in short, thought that the argument she presented as Solicitor General Kagan was very persuasive. She wanted to overrule Citizens United, or alternatively, accept the Montana Supreme Court’s “factual finding” that “independent expenditures by corporations” led to the appearance of corruption in Montana. These four justices had the power to grant certiorari (that only takes four votes), but did not do so because, they said, it would be futile. Instead they voted to deny certiorari. With the fifth justice, it would no longer be futile.

We can expect that the new Court will promptly overrule Citizens United, and with it the argument that the government cannot ban political pamphlets.

The Second Amendment, as currently interpreted in District of Columbia v. Heller (5 to 4), will also change. This change is unusually significant because of the dissent’s reasoning. The dissent says what the Second Amendment means: It “is the collective action of individuals having a duty to serve in the militia that the text directly protects”—thus converting one of the Bill of Rights into to a duty to be drafted into the militia. Then, it adds, “there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense.” We are one justice short of a Court telling us, “You have no right to defend yourself.” The Court does not just issue orders, it articulates “reasons,” and those reasons affect other cases.

Shelby County v. Holder (5 to 4) involved a federal statute that imposed highly intrusive federal oversight of voting limited to certain states—those that had maintained tests or devices as prerequisites to voting, and had low voter registration or turnout, in the 1960s and early 1970s. The Court invalidated this law. The majority said it is not rational for Congress to single out certain states to deal with alleged voting problems based on statistics already a half-century out-of-date and then apply this law for the next quarter-century. The statute covered Mississippi (where black voter turnout exceeded white voter turnout) and excluded Massachusetts, which had the worst rate of black voter turnout of all 50 states.

The dissent simply announced that the law was rational. The dissent’s reasoning gives Congress carte blanche to impose extensive restrictions on states that do not have a minority-voting problem while excusing states that do. The dissent would allow Congress to play favorites among the states in the guise of dealing with low minority turnout.

National Federation of Independent Business v. Sibelius upheld most of Obamacare by creatively rewriting of the statute. However, five justices did agree that Congress could not use the Interstate Commerce Power to regulate non-acts, omissions. Congress could regulate commercial acts that affect commerce in other states—a holding that goes back to 1937 (and earlier). However, Congress needs a commercial act. Not buying insurance affects commerce just as not buying a car affects commerce, but not buying something is not a commercial act. It is not even an act; it’s an omission.

This minor restriction on federal power was too much for the dissent, which said Congress could regulate this refusal to buy. Under its reasoning, there is no limit to the Commerce Power except the federal government’s underdeveloped exercise of self-restraint.

Burwell v. Hobby Lobby Stores, Inc. (5 to 4), ruled that a federal regulation violated a federal statute when it forced closely held for-profit employers to offer health plans that include various drugs the employers considered abortifacients. Congress could always pay for abortifacients directly, but the Obama Administration insisted that the employer pay or face heavy fines. The four dissenters would require employers to violate their conscientious beliefs because requiring women “to sign up for, a new [government funded and administered] health benefit” is just too burdensome. The Little Sisters of the Poor also complain about being forced to facilitate abortions in their required health plan and reject the Obama Administration’s alternative as an accounting gimmick. The Supreme Court has recently sent this case back to the lower courts, and the future looks dim for the Little Sisters.

The new Court line-up will also affect older cases like Harris v. McRae (5 to 4), which held that a woman’s right to abortion does not require the government to pay for it. Justice Ginsburg (not on the Court at the time) said in a 2009 interview that this result “surprised me,” because “I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of.” The new Court may require state-subsidized abortions so we don’t have “growth in populations that we don’t want to have too many of.”

Finally, another campaign finance case is McCutcheon v. FEC (5 to 4). The Court reaffirmed what it has held for at least 40 years—that Congress cannot “restrict the political participation of some in order to enhance the relative influence of others.” The dissenters argued that the Court must balance “the individual’s right to engage in political speech,” with “the public’s interest in preserving a democratic order in which collective speech matters.” “Collective speech” is simply another name for a state or federal law. We are one vote short of a Court rule that says it must balance the individual’s right of free speech with the government “right” to restrict free speech. The Framers must be turning over in their graves.