Constitution Daily

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Constitution Check: Is the Supreme Court showing a political bias?

June 26, 2012 by Lyle Denniston


Constitution Check: Fact-checking the news

Lyle Denniston looks at claims that the nine Supreme Court justices aren't making decisions independent of political parties.

The statement at issue:

“It is a sad day for our democracy and for those of us who still want to believe that the United States Supreme Court is anything more than another political body in Washington, D.C.”

– Montana Attorney General Steve Bullock, in a press release June 25 denouncing the Supreme Court’s decision against a Montana state law banning corporations from spending money from their own treasuries to influence state political campaigns.

We checked the Constitution, and…

It is a bit difficult, even with a rich imagination, to guess what the Founders who wrote the Constitution would have thought about the Supreme Court’s current view that the First Amendment free-speech clause protects a right for corporations and wealthy individuals to spend unlimited amounts of money to influence who gets elected to the Presidency or to Congress.

But we do know, directly from one of the most brilliant members of the constitutional generation, Alexander Hamilton, how vital it was to them that the courts they were creating remain independent of the political branches.

Hamilton, in Federalist Paper 78, wrote: “The general liberty of the people can never be endangered” from the judiciary, so long as it “remains truly distinct from both the legislature and the executive.”

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

But if the Supreme Court decides a modern case in a way that has political consequences,  does that mean the Court is simply “another political body in Washington, D.C.”?

State Attorney General Bullock, of course, is not the first disappointed advocate to fret about this.  How many times has the Court’s 2000 decision in Bush v. Gore been denounced as the work of “Republican Justices” who connived to make George W. Bush the President?

In a political culture in which everyone’s motivation is suspect, it is very easy to assume that the Supreme Court, too, has a political agenda, and will cavalierly cast aside “judicial restraint” and even impartiality if necessary to advance that agenda.  And, when even the most upstanding media organizations routinely analyze the votes of a justice in relation to the president who chose them, one might even imagine that the justices come to a decision that will have a political impact with their partisan minds made up.

So, there is some virtue in looking more closely at a Supreme Court decision that has such an impact, to see whether partisan preferences might best explain the result.

The Montana case that the justices swiftly decided on Monday is a good test case on this point.  Obviously, if Montana is forbidden to ban corporate funds from being spent on state elections, that probably will work out to the advantage (more or less) of Republican candidates, if the usual pattern holds.

So, was the ban that did emerge driven by party politics?

The state Supreme Court ruled last December that the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, striking down a federal ban on corporate political spending, did not control the constitutionality of a very similar Montana law.  There were dissenting judges on the state court, and one of those dissenters wrote that “Citizens United is the law of the land, and this court is duty-bound to follow it.”

Two justices of the Supreme Court – who had dissented when the Court decided the Citizens United decision – made the same point when the Court in February put the Montana decision temporarily on hold.  Those two went along with the delay, making it unanimous, “because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified.”

One can try to make the case that the facts in Citizens United were different from those in Montana, but when nine justices of varying philosophies agree that such distinctions do not count when the controlling legal principle has not changed, an argument that party politics was in control is very hard to make.

The Constitution’s Supremacy Clause does not allow state courts to stray from constitutional principle spelled out by the Supreme Court.

Moreover, when the Court took its final action on this case, the issue that actually was at stake was not whether Citizens United was wrong or politically driven, but whether the Court majority was prepared – just two and a half years later – to reconsider that ruling.

Not one of the nine justices intimated on Monday that they thought the result would come out differently if the Court did get involved again.   The Court is not in the habit of reconsidering rulings so soon after they are issued, and that has nothing to do with party politics; it is a tradition designed to keep legal principles more or less stable.

To make the case that the Court’s supposed partisan bias was showing in this ruling, one has to take, as conclusive, the probable reality that Republicans likely will gain the most politically from this decision.  In political conversation, that might be enough to prove that the Court was biased in favor of just that result.  The legal method, though, generally works to avoid that kind of logical leap, and Alexander Hamilton was confident that it would, if the courts did not become arms of the political departments.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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