Listening to Senators Feinstein, Durbin, Leahy and Schumer castigating the current members of the U.S. Supreme Court in their opening statements in the Kagan confirmation hearing shows that they apparently want to turn this proceeding into a star chamber on Chief Justice Roberts and Justice Alito, among others, as opposed to an examination of Elena Kagan’s judicial philosophy and ideology. Hearing their repetitive attacks on the Court’s decision in the Citizens United v. FEC decision also reminds me of a famous quote by Vladimir Lenin, who once said that if you repeat a lie often enough, it becomes the truth.
These critics keep saying that the five-member majority on the Court overturned 100 years of established law and precedent, a claim that is completely false on its face, as I explain here. The case did overturn a 20-year old precedent that had itself been decided by a narrow five-judge majority that ignored stare decisis and simply bypassed a long string of prior cases throwing out bans on independent political expenditures and advocacy and extending First Amendment rights to corporations and associations as if they did not exist, creating a new justification for limiting political speech that was based on their own views of public policy, not the provisions of the Constitution or the Bill of Rights.
The Citizens United decision restored the First Amendment and upheld the right to free speech and the right to freely associate that had been restricted by Congress through federal election campaign finance laws, apparently to the great consternation of these Democratic senators on the Judiciary Committee. They apparently believe that the First Amendment only provides protection for those that the government, i.e., the majority in Congress, believes should not be censored.
The constant references to the “conservative activists” on the Court are completely at odds with the actual facts and legal holdings in Citizens United and the other cases being mentioned by these senators in their opening statements. Robert Alt and I explain the falsity of this claim in another legal paper on this subject here. In fact, Robert Alt will be testifying on Thursday in the Kagan hearing on this very subject.
But by ascribing the “activist” label to conservative judges, liberals are trying to damage the public’s image of the Supreme Court and those justices. They also apparently want to divert attention from Kagan’s political ideology and her very liberal views on many different issues, a diversion that should not fool the public or the other senators on the Committee who are interested in getting at the truth about what kind of judge Elena Kagan would be if she is confirmed.