SUPREME COMMON SENSEJuly 13, 2018
Donald Trump nominated Brett Kavanaugh to fill Justice Anthony Kennedy’s seat on the Supreme Court. Republicans exulted. Democrats vowed a bitter fight against the nomination. Odds are, Judge Kavanaugh, who appears to embrace strict interpretation of the Constitution, will be seated. I hope he’ll bear in mind a 2010 Supreme Court decision and the common sense of two Torah portions.
Ten years ago, Citizens United, a non-profit corporation founded for the purpose of“restoring our government to citizens’ control” utilizing “a combination of education, advocacy, and grass roots organization,” sought to advertise a documentary film it produced critical of Hillary Clinton. Mrs. Clinton was running for the 2008 Democratic presidential nomination. The 2002 Bipartisan Campaign Reform Act (aka McCain-Feingold) restricted corporate-sponsored advocacy communications from naming a federal candidate 30 days before a primary election and 60 before a general election. Citizens United sued the Federal Election Commission, declaring a violation of its free-speech rights under the First Amendment. Citizens United insisted that it was merely presenting information about a candidate, not endorsing or opposing one.
The issue went to the Supreme Court where liberal justices would have upheld McCain-Feingold. During initial oral arguments, soon-to-retire Justice David Souter read aloud some of the film’s narrative: “She’ll lie about anything. She’s deceitful. She’s ruthless. Cunning. Dishonest.” He concluded, “That sounds to me like campaign advocacy.”
Chief Justice John Roberts asked for additional arguments addressing broader grounds. These were made three months following Souter’s retirement. The court voted 5-4 in favor of Citizens United. Justice Kennedy’s majority opinion referenced a lower court’s decision upholding banning books published or distributed by corporations or labor unions if they promoted or opposed a specific candidate. Banning books was un-American. Under the rubric of free speech, enormous sums of money from super PACs—political action committees—began flowing into election campaigns, though not to political parties.
There’s a strong difference between speechand reach. I point to Justice Souter’s post-retirement comments in 2012: “If I exercise my liberty to the greatest possible extent, I can suppress the rights of a lot of people.” Corporations and the wealthy can spend millions of dollars promoting their views. They enjoy reach—distribution—average Americans cannot match.
The court’s decision seems based on Originalism—interpreting the Constitution exactly as written. That’s difficult. The Constitution’s writers knew of newspapers and soap boxes but not television, the internet and social media. Lack of context and adaptability can make a travesty of justice.
Here I cite Torah (Bamidbar—Numbers). In the portion Pinchas(Phineas), the five daughters of Zelophechad, who died without a son make their case to Moses that they should inherit their father’s portion of land in Canaan. God assures Moses this is just. The laws of inheritance are amended. In Mattot(Tribes), the tribes of Reuben and Gad ask Moses permission to settle in the cattle country east of the Jordan River rather than in Canaan. This alters God’s plan, but Moses says they may do so after participating in Canaan’s conquest.
During this November’s mid-term Congressional elections, voters will be bombarded by messages spread via huge sums of corporate and individual money. Such communications will give their sponsors—usually unidentified—unequaled power to sway elections. Common sense tells me that free speech will not be served.
Many thanks to Ron Laupheimer, a retired lawyer, for clarifying some issues. I am not a lawyer or legal scholar but am exercising my right to free speech—even if my reach is limited—based on, well, common sense.
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My hope is that Brett Kavanaugh as a Justice will rise to the stature of the Court. I think of Justice Hugo Black who was once a member of the KKK and turned out to be quite liberal. He would never even be nominated today. Liberals, like myself, feared Justice Souter but he turned out to be a pleasant surprise. And Justice Roberts saved Obamacare. All I have left is hope.
That’s the thing, Jerry. You never know how a justice will respond to the real-life decisions he or she must make. Here’s hoping.
Often, Judges move toward the political “center” as they sit on the Court. Not always, but often. I think Kavanaugh will be that type of justice. He will have to overcome the fact that he was not educated at Lowell as Breyer was, so that’s a hurdle.
Tracy, I hope you’re right. The Court utilizing “common sense” can make rulings beneficial to the nation even if deemed by some as imperfect. An ideological court that makes decisions at either end of the spectrum does a disservice to the law and the nation.