The Supreme Court’s recent decision to eviscerate more campaign finance regulations has left many people perplexed. According to Chief Justice Roberts, donating huge sums to get “political access” to elected officials cannot be seen as a form of “corruption.”
Such language has led some critics to describe Roberts as a naïve judge who cannot grasp the considerable role of money in politics from his ivory tower at the Supreme Court. Other commentators like Jeffrey Toobin have argued that Roberts is a shrewd strategist who perfectly understands the political system.
The same debate arose over the Citizens United decision, in which Justice Anthony Kennedy wrote that unlimited donations by corporations to Super PACs “do not give rise to corruption or the appearance of corruption,” and “will not cause the electorate to lose faith in our democracy.” Opinion polls strongly suggest otherwise. Long before the Court issued its decision scores of citizens already believed that campaign donations have a corrupting influence on politicians. Citizens United only exacerbated that mistrust.
These two cases illustrate how the Justices sometimes seem either disconnected from the real world or deliberately oblivious to it. This tendency has been apparent in several of the Roberts Court’s most controversial decisions.
In a major employment discrimination case, Lily Ledbetter, the sole female supervisor at a Goodyear plant, sued the company because she was paid significantly less than all her male colleagues, including those with less seniority. Yet, the Court’s conservative majority dismissed the lawsuit because Ledbetter had not filed her complaint within 180 days of the initial wage discrimination. It did not matter that her lower salary reflected cumulative discrimination over 19 years as a Goodyear employee.
In a famous dissent, Justice Ruth Bader Ginsburg argued that the majority’s “cramped interpretation” of the law ignored “the realities of the workplace.” Because employees are commonly kept in the dark about their colleagues’ salaries, it would be impossible for many of them to file wage discrimination complaints within the strict deadline imposed by the Court. Congress eventually heeded Ginsburg’s call to amend the statute, thereby rejecting the Roberts Court’s narrow perspective.
Last year, the Court struck down a key provision of the Voting Rights Act by concluding that this civil rights law has largely outlived its usefulness. In another spirited dissent, Ginsburg argued that the conservative majority disregarded how the Voting Rights Act serves to prevent modern forms of discrimination, such as questionable voter-identification laws. Since then several states have indeed moved forward with laws that will make it disproportionately hard for minorities and poor people to vote.
Whether the Supreme Court is oblivious to the real world implications of its decisions is an age-old question. Illustratively, Franklin Roosevelt’s supporters used to call the Justices “nine old men” obtusely bent on blocking popular New Deal reforms.
Justice Stephen Breyer once said that “judges are not very good politicians.” That may be true in some cases, although the Justices are usually mindful of the political consequences of their decisions.
The Roberts Court is continuing to dismantle the campaign finance system even though the consequences of Citizens United are clear. Sheldon Adelson, the casino mogul, tellingly spent at least $98 million in the 2012 election cycle. While the Court has not abolished “base limits”—the maximum amount a donor may give to a single candidate—these limits can now be circumvented by donating money to the candidate’s Super PAC. The Justices might put an end to base limits in a future case.
According to the Roberts Court, more “speech,” meaning more campaign donations by corporations or tycoons, makes society more democratic. Its definition of “corruption” is essentially limited to bribery. That is not so much a naïve view as one reflecting a particular ideology. As Roberts recently emphasized in McCutcheon v. Federal Election Commission, it is unacceptable for the government to try to “level the playing field.”
From this angle, equality means allowing all citizens to freely compete by donating as much money as they can to influence politicians. It does not matter if a millionaire can donate more than millions of Americans put together. Under that Orwellian conception of democracy, all citizens are equal but some are more equal than others.
Jouet is a constitutional scholar and human rights lawyer.