A couple of months ago, I wrote a post on the troubling conservative turn of the Supreme Court under Robert's tutelage. Today I read of another case that looks at the First Amendment from the other side, instead of being used to support corporations and the unlimited private funding of elections, this case successfully overturned a public financing system in Arizona (see "Strong Opinions" by Jeffrey Rosen in The New Republic, August 18, 2011). In Arizona Free Enterprise Club v. Bennett, the usual suspects (in a 5-4 decision) accepted the challenging of Arizona's public campaign financing law by one of the state's PACs. The absurd claim was that by providing $20,000 in public funding to candidates in state House races, and an additional matching dollar for every dollar raised above that amount, the law was violating the First Amendment. Robert's claim was that "leveling the playing field" accomplished this verboten result and somehow "inhibit[s] robust and wide-open political debate without sufficient justification" How does supporting candidates who cannot get sufficient private funding somehow undermine wide-open political debate? Should we really think of leveling the playing field as unconstitutional (even if affirmative action is essentially dead)?
It appears as if the Bush v. Gore decision of 2000 has opened the floodgates for partisan decisions that essentially use the constitution and precedent as mere instruments to endorse the political interests of the majority. Of course the Supreme Court has never been truly neutral, and decisions like Plessy v. Ferguson and the Dred Scott case certainly show the lengths the court will go to support their politics. But something appears new today -- a complete disregard for rationality or reason in the decisions the majority decide. If we go back to the Bush/Gore case, the 16th amendment was invoked, claiming that citizen's would not be treated equally if a recount was done (a spurious claim that led that same majority to caution that this was essentially a one off and should not be used as precedent in future cases). With the more recent pro-corporate decisions, the First Amendment both protects corporations to spend unlimited amounts of money on candidates and disallows the state government from spending any. Luckily in the same session, we find, in Arizona Christian School Tuition Organization v. Winn, that state government can offer tuition tax credit to organizations that then spend the money on scholarships for students attending religious and secular private schools; which many would argue is a direct violation of the very same First Amendment. So why couldn't Arizona taxpayers challenge the law? The five conservative judges said the taxpayers had no standing to sue -- which led Elena Kagan to argue that the decision "threatens to eliminate all occasions for a taxpayer to contest the government's monetary support of religion."
It is bad enough that the Court appears willing to both bolster corporation's political clout and limit its legal and financial liability in case after case, but if they are to continue stripping citizens of their rights at the same time, we will soon find ourselves in a plutocracy that is not much different than Russia. As I have always argued in this blog, if we allow the wealthy and powerful to act without constraint while limiting the power of the people to voice their consent or challenge entrenched power, we end up with only a facade of democracy. Should we really be giving that much power over our collective future to unelected lifetime judges who have far surpassed their intended constitutional power?
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