Monday, June 27, 2011

More Evidence That the Court Is Not Simply a "Majoritarian" Institution: Today's Decision on Public Financing of Elections

Rick Pildes

One aspect of the Court's 5-4 decision today striking down Arizona's public financing system for elections is what the decision tells us about how much the Court is or is not constrained by the view of national political majorities. The "majoritarian" thesis about the Supreme Court, which has become more popular in recent years among legal academics and has been absorbed by many p0pular commentators, maintains that the Court does not stray far from the preferences of national political majorities on issues. The Court's decision last year in Citizens United was something of an embarrassment for this thesis (or certain versions of the thesis). When the Citizens United Court held unconstitutional restrictions on corporate electioneering spending, the Court issued a decision that (whatever its merits as a legal matter) certainly stood in the face of the bulk of public opinion, both before and after the opinion.

In response, defenders of the majoritarian thesis, such as my colleague Barry Friedman and his co-author, Dahlia Lithwick, argued that the Court must have been taken by surprise in the reaction to Citizens United; the Court mistakenly failed to realize how strong the negative reactions to the decision would have been. Indeed, the subtitle of their writing on the case was Did the Roberts Court Misjudge the Public Mood On Campaign Finance Reform? If that view is right, one would expect the Court to back off in later cases from its position on campaign finance laws.

Yet today's decision, along with other post-Citizens United decisions of the Court, confirms that the 5-4 majority remains as firmly committed as ever to the positions reflected in Citizens United. Indeed, my sometimes co-teacher, Paul Clement, suggests that the Arizona case might reveal that the backlash has made the Citizens United even more "energetic" and committed to its views. Today's decision certainly confirms that the 5-4 Court is not backing off in any way at all from its aggressive constitutional stance towards campaign finance laws. In an article titled Is the Supreme Court a "Majoritarian" Institution, I pointed to the Citizens United decision as powerful evidence that the Court does not merely reflect majoritarian preferences, even on highly visible and momentous political issues, at least in the way some accounts of the "majoritarian thesis" envision the relationship between the Court and public opinion. I see no signs that the Court majority is trying to backtrack from its decision in Citizens United; indeed, the Roberts Court has now struck down all five campaign finance laws it has confronted, in cases both before and after Citizens United. Among all the other things that can be said about today's decision, what further insight it provides into the relationship of the Court to "public opinion" is worth considering.


What majoritarian backlash? The vast majority of actual voters have no particular knowledge of the Citizens United case and government control over campaign finance doesn't even make the top 25 issues concerning voters.

Of course, Kennedy v. Louisiana (unconstitutional to execute a child rapist) is another countermajoritarian outcome. I suspect that people like Friedman would argue that polling only predicts how the Court will behave on issues that the people polled actually care about. People have views on Citizens United, but not, usually, very passionately held views. Same with executing child rapists. Whereas on issues like abortion, the constitutionality of major entitlements, or even the constitutionality of Section 5 of the VRA, it is very hard to imagine the Court acting too far out of step with popular opinion.

Yeah, something like that. The self appointed 'reformers' may be outraged that the Supreme court is spoiling their game, and the legislators are certainly pissed off that they're being prevented from rigging elections on the pretext of reforming them, but the public isn't bothered.

They tried a system for public financing with check offs, and not enough people check off to finance it. That ought to tell you something.

"The Will of the People ... " takes time to become effective, as was the case with Brown trumping Plessy many decades later, and Brown's long-trek to reach the point that, despite the Republicans' Southern Strategy, conservatives dare no longer to challenge Brown. (in David Bernstein's "Rehabilitating Lochner" (aka "Rehabilitating Much Ado About Nothing"), a screed against progressivism of the past (in an effort to taint progressives of the present), Bernstein seems to claim that the Lochner majority had more influence on the Warren Court decisions than did the progressives back in the Lochner Era. Perhaps libertarians and other conservatives now support the Warren Court that they much reviled in earlier years during and after its reign?)

Imagine, our yodeler knowing that "[T]he vast majority of actual voters have no particular knowledge of the Citizens United case .... " Consider the backlashes in the several states that elected Republican Governors. Backlashes take time. Why it took the Tea Party over 200 years!

And Brett, who apparently thinks that the Second Amendment should not limit the number of guns a person may have, apparently thinks that "money talks" is unlimited, protected speech under the First Amendment. Imagine the resulting cacophony.

"And Brett, who apparently thinks that the Second Amendment should not limit the number of guns a person may have, "

Any more than the 1st amendment limits the number of books you can have in your library...

Yeh, Brett, books don't kill either .... Perhaps if more gun yahoos actually read books ....

I think it's remarkable that I would have to point out that an amendment guaranteeing a right does not place limits on that right, let alone remarkably irrational limits. Next you're going to remark that the Fifth amendment places limits on how many houses you can own.

And what's going on in your head, that you even think how many guns somebody else owns is an issue? I can see being concerned about how much ammo somebody owned, at some point it would be a fire hazard. But what's the hazard if somebody owns "too many" guns? Structural failure in the floor?

Concern about individuals owning "too many" guns is just a manifestation of irrationality about firearms. There's simply no rational reason to be concerned about it.

And, back on topic, despite the 'reformers' desperate efforts, there is no majoritarian backlash. The CU decision offends only censorious campaign 'reformers' and incumbents who want to silence pesky interest groups which keep bring up topics they'd rather not address.

Is Brett suggesting that with his stash of guns, he doesn't have ammo? Is Brett like a stamp or coin collector admiring his stash of guns? Stamp and coin collectors' thoughts as they review their collections might be a tad different from a gun collector, even without ammo. A stamp or coin collector could use his collection to do what harm compared to the potential a gun collector might bring about with his stash?

And back to books, there is always the risk that a heavily laden bookcase might fall over causing injury to someone nearby, a tad less damage than, say, an AK-47. No ammo for the stash of guns? But what is comparable to ammo in the case of a stamp or coin or book collector? No ammo for the stash of guns? But is the ammo outlawed?

As to pesky interest groups, consider that the NRA was once pesky and because money talks has the ammo to shoot its mouth off for unlimited Second Amendment rights. Yes, money talks, and an AK-47 in the hands of a gun nut talks.

As a serious bibliophile, I assure you that my bookcase would do a lot more damage to you by falling on you than my 'assault rifle' ever could, by falling on you.

As ownership of both represents the exercise of a civil liberty, you can't exactly presume that I'm going to misuse either as an excuse to violate that civil liberty.

But, Brett, a loaded bookcase that falls does not result in the devastation of a loaded AK-47. Bookcases loaded with books are not made to fall but AK-47s are made to shoot live ammo, which can hurt and kill people. I don't want to burn your books. Rather, if they are worthwhile books I hope you would read - and understand - them. But seriously, do you sit with your AK-47, hopefully unloaded, and contemplate what it could do in the hands of a gun nut with ammo, as opposed to someone as sensible as you are? No, let's not burn books, but ....

One last comment, and then I'm out of here, as dueling with Shag on this is like having at it with the Pythons' Black Knight.

I have a constitutional right to own books, and to own guns. Just as you can not presume that I'm going to use, say, a chemistry text to tell me how to poison my neighbors, you can not presume that I'm going to shoot up my neighbors. It's a civil right, with legitimate ways to exercise it. I am entitled to the presumption, (Rebutable, of course, with due process.) that I am not going to use my guns improperly.

Furthermore, as my possession of multiple guns does not in any way enhance my capacity to do wrong, (I've only got two trigger fingers, and I'm a lousy shot left-handed.) even if you, as is typical of gun controllers, reject the presumption of innocence in the case of gun owners, it is utterly irrational for you to care how many guns I own once I own one or two. Only an animus against gun ownership can explain such hostility to the ownership of multiple guns.

Like the hostility you evince, to the point where my respect for the 2nd amendment poisons in your eyes my concern for all other civil liberties. We're discussing the 1st amendment here, why did you feel the need to bring up the 2nd?

Because, as is typical of gun controllers, you're the gun nut here, not me. You're the one who obsesses about guns.

Now, can we get back to discussing the FIRST amendment?

Brett asks, after his rant:

"Now, can we get back to discussing the FIRST amendment?"

perhaps being unaware that I am and have been exercising my First Amendment speech right. I don't know who's the Pythons' Black Knight. But if that Knight is a person of violence, it is not I.

Brett's only got two trigger fingers, which perhaps would limit him. But the Second Amendment relates to arms - today its guns, including automatic ones, but tomorrow an absolutist Second Amendment may extend to other arms that are capable of providing self-defense but hurting and killing more than Brett's two trigger fingers could with AK-47s. Perhaps having multiple guns is like having a porno stash to be admired by the possessor. (There's a two-fer First and Second Amendments psycho-logical profile!) But there is the bully aspect of people who seem to need multiple guns and want the world to know, really cowards.


"Pythons' Black Knight"

Monty Python and the Holy Grail had a battle with a Black Knight, who kept on fighting even after limb after limb was chopped off.

Brett, how is your quest to turn the US into Somalia coming along?

This comment has been removed by the author.

The Supreme Court represents the institutional political elite and the ethics of that elite. In the crises in the 30's the court was behind the curve of popular sentiment, in the 50's and 60's ahead of it, and now behind it again.

The difference now is that popular sentiment is being ignored even by the supposedly less institutionally protected members of the political class. Our elite political culture now is a culture of collaborative management rather than of formal adversarialism. The ideological defense by each branch of government of its prerogatives is a defense of formal authority based on self-interest. It is not in itself a defense of "truth". Now our united managers, from the IMF, to Obama and his advisors stand for "reason and truth", while the rioters in Athens, therefore stand for irrationalism and chaos. Protesters in the Middle East are defended or ignored depending on our relations to their unelected rulers, but these cynical reactions are still defended not as realism but idealism. it's also the case the the adversarial relations among political parties have gained strength while the adversarialism of branches of government has faded, for the same reason that parties defend "truths". The mix of ideological rather than hopeful idealism, and of corruption, renders everything unstable.

The American Tea Partiers are the more simply reactive, less educated and less self-aware cousins of the protesters in Cairo and Wisconsin.

I should add something else

30 years ago the ACLU made it a policy to stay out of Second Amendment fights. Changing that policy was a mistake.

One reason the Court might be more willing, in the long-term, to aggressively strike down campaign finance reform laws is that majoritarian checks might not work as well here. If, as some fear, the Court's decisions make it more likely that money will continue to play an increasingly outsized role in politics, then currently unpopular decisions (assuming that they are) might end being self-perpetuating.

You might compare it to the Warren Court's one person, one vote jurisprudence. They might've been unpopular among existing legislators -- and among those who held dominant political power -- but they arguably had the effect of reconfiguring that political power in ways that bolstered the opinions.

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