[The] activist element of the Supreme Court struck down key protections of our elections integrity, overturned the will of Congress and the American people, and allowed all corporations to spend without limit in order to elect and defeat candidates and influence policy to meet their political ends. The consequences may well be nightmarish.
—Senator Sheldon Whitehouse (D-RI),
January 29, 2010
The day after President Obama’s inauguration, Supreme Court Chief Justice John Roberts was called back to the White House. He needed to take care of some unfinished business.
At just past seven thirty that evening, Roberts and President Obama stood face-to-face in the Map Room of the White House. During World War II, President Franklin Roosevelt used the room to discuss war strategy with his generals as they pored over map after map of the European battlefield, hence the name given to the room. Today, some of those maps still hang on the walls.
Previous presidents, such as Calvin Coolidge, used the room for billiards, and to this day, with only a red paisley couch and two matching high-back chairs, a low-hanging polished wooden table, and a few delicately crafted desks and end tables placed near the walls, the room is still barely furnished, and there’s more than enough space to drag a pool table into the center of it. The Map Room is now mostly used for interviews and private meetings, but on this night, it was to be used for a do-over of the presidential oath of office.
John Roberts hardly ever makes mistakes, but during President Obama’s inauguration the day before, in front of millions of Americans huddled together on the lawn of the White House and Washington Mall, and hundreds of millions of people watching around the world, Roberts made what was likely the most embarrassing mistake of his life, completely butchering the presidential oath of office. Even though he’d been practicing the oath all morning, and had the words committed to memory, when it came time to swear Barack Obama in as the nation’s forty-fourth president, Roberts fumbled, putting the word “faithfully” out of order of the other words in the oath and then stumbling through the rest of the lines before wrapping it up and congratulating the new president.
Immediately, Fox News jumped on the garbled oath. Hours after the inauguration, talking head Chris Wallace questioned the legitimacy of the president, telling viewers, “We’re wondering here whether or not Barack Obama in fact is the president of the United States,” and then speculating that maybe this is a situation that will ultimately end up “going to the courts.”124 I guess the irony of having Chief Justice John Roberts rule on whether or not he’d legally administered the oath escaped Wallace at the time.
So to quash any Fox News–manufactured controversy from the get-go, the White House legal counsel summoned John Roberts back to the White House the next day to readminister the oath. Roberts obliged, and in front of the fireplace of the Map Room, under the watchful eyes of a portrait of Benjamin Latrobe, the man who oversaw construction of the United States Capitol Building, Barack Obama once again recited the presidential oath of office.
Turns out, the Map Room was the most appropriate place for Roberts and Obama to convene for the constitutionally mandated swearing in, because from that day forward the Economic Royalists, led by John Roberts, would lay siege to the United States and successfully turn our prized democracy into an oligarchy.
That oath would be meaningless because, almost exactly a year later, Barack Obama’s democratic republic would be transformed into a Royalist oligarchy by the Supreme Court.
Roberts Takes the Case
The Economic Royalists knew the final stage of their coup required the clearing away of all impediments to unrestrained corporate participation in electoral politics. As in, if a corporation likes a politician, it can ensure that he or she is elected every time; if it becomes upset with a politician, it can carpet-bomb his or her district with a few million dollars’ worth of ads and politically destroy the candidate. With that power, the Royalists could essentially handpick lawmakers from that point forward. And with the case of Citizens United, John Roberts knew just how to give the Royalists what they wanted.
Forty years after the Powell Memo instructed that the “judiciary may be the most important instrument for social, economic and political change,” the Royalists held a five-to-four majority on the highest court in the land.
And as the Royalists were expanding their influence in the United States, they had the perfect ally in John Roberts. Whether it was his work as a clerk on federal courts, as a lawyer in the White House under both Reagan and George H. W. Bush, or as a millionaire corporate lawyer, there was a common theme to Roberts’s approach to American law—a theme that was put on steroids when he ascended to the pinnacle of the American legal system.
As Jeffrey Toobin notes in a New Yorker article documenting the rise of John Roberts, entitled “No More Mr. Nice Guy,” “In every major case since he became the nation’s seventeenth chief justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.”
As a US senator, Barack Obama explained his opposition to Roberts’s nomination to the high court, saying on the floor of the Senate, “It is my personal estimation that [Roberts] has far more often used his formidable skills on behalf of the strong in opposition to the weak.”125
The data would support then Senator Obama’s fears. In 2013, a study out of the University of Southern California concluded that the current Supreme Court under the leadership of Chief Justice John Roberts is the most pro-business court since World War II, with the Chamber of Commerce winning nearly 70 percent of the cases it intervened in.126
But no Royalist victory was more significant than that of Citizens United v. Federal Election Commission.
During the bruising primary election season of 2008, a right-wing group put together a ninety-minute hit-job on Hillary Clinton and wanted to run it on TV stations in strategic states. The FEC ruled that advertisements for the “documentary” were actually “campaign ads” and thus fell under the restrictions on campaign spending of the McCain-Feingold Act, so they stopped them from airing. (Corporate contributions to campaigns have been banned repeatedly and in various ways since 1907, when Republican president Teddy Roosevelt pushed through the Tillman Act.)
Citizens United, the right-wing group, took the case to the Supreme Court, with right-wing hit man and former Reagan solicitor general Ted Olson—the man who’d argued Bush’s side of Bush v. Gore—as their lead lawyer. Some newspaper reports have placed John Roberts in Florida during the 2000 election-recount fiasco assisting Olson and the Bush legal team in convincing the Supreme Court to stop the statewide recount. Roberts claims he was just taking a vacation. Either way, a decade after the high court handed George W. Bush, and the Economic Royalists, the presidency in 2000, it would hand the entire institution of American democracy to the Royalists in 2010.
This new case, Citizens United v. Federal Election Commission, presented the best opportunity for the Roberts court to use its five-vote majority (a consequence of Republican rule in the White House for twenty of the last thirty years since Roberts clerked for Justice Rehnquist on a left-leaning court) to totally reshape the face of politics in America, rolling us back to the pre-1907 era of the Robber Barons.
Although he is handsome, with a nice smile and photogenic young children, Roberts is no friend to average working Americans. If anything, he is the most radical judicial activist appointed to the court in more than a century. He has worked most of his life in the interest of the rich and powerful and was chomping at the bit for a chance to turn more of America over to his friends.
In the Citizens United case, the Roberts court listened to arguments, took briefs, and even discussed it among the
mselves as if they were going to make a decision. But instead of deciding the case on the relatively narrow grounds on which it had originally been argued—whether a single part of a single piece of legislation (McCain-Feingold) was unconstitutional—John Roberts asked for it to be reargued in September 2009 and asked that the breadth of the arguments be expanded to reexamine the rationales for whether Congress should have any power at all to regulate corporate “free speech.”
Striking down any and all restrictions on corporate “free speech” was the logical end result of nearly 125 years of Supreme Court decisions, beginning in 1886 with the Santa Clara County v. Southern Pacific Railroad case, that conceded more and more constitutional rights that were supposed to be reserved for actual people over to corporations.
The Road to Personhood
After the Civil War, three amendments to the Constitution passed to provide fully for the rights of the newly freed African Americans who had formerly been held in slavery. The Thirteenth Amendment explicitly bans slavery; the Fifteenth Amendment guarantees their right to vote. And the Fourteenth Amendment says that they will have full access to the courts and cannot be denied a level of legal and constitutional protections equal to that of white people.
Here, for example, is the entire text of Section 1 of the Fourteenth Amendment, ratified in 1868:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Notice the word “person” in the text.
For over a thousand years of British common law and a century of American constitutional law, attorneys and legislators understood that there are two kinds of “persons.” The first, “natural persons,” are human beings. It was for them, for example, that the Magna Carta was written in 1215.
The second type of “persons” acknowledged by law are, broadly, states and nations, churches and nonprofits, and for-profit and other types of corporations. The reason such institutions need some sort of “personhood” status is so they can engage in interactions with the rest of us—own and pay taxes on land, for example, or sue and be sued. From the seventh-century origins of British common law to the 1870s, nobody seriously challenged these two types of personhood, the need for each, and their clear and explicit differences.
But in the Reconstruction era following the Civil War, the most powerful corporations in America—the railroads—saw an opportunity to use the arguably sloppy construction of the language of the Fourteenth Amendment to radically grab more power for themselves. They and their attorneys began to argue that when the Fourteenth Amendment was written, its authors in Congress explicitly said “person” rather than “natural person” in the last part of Section 1 because they fully intended it to include both “natural persons” and “artificial persons,” such as railroad corporations.
In plain language, they argued that the authors of the Fourteenth Amendment intended to free both the slaves and the corporations, giving to both full constitutional protections.
They sent these arguments up in the Ninth Circuit Court, then presided over by US Supreme Court Associate Justice Stephen J. Field (back then the SCOTUS Justices “rode the circuit” most of the year, and just met in Washington, DC, for a few months every year to convene as the Supreme Court). And Field was deeply in the pockets of at least one, and probably more, of the railroad barons.
When Field agreed with this argument that the Fourteenth Amendment freed the corporations along with the slaves in a Ninth Circuit Court case, which he then sent to the Supreme Court (on which he also sat), in 1873, Justice Samuel F. Miller minced no words in chastising corporations for trying to claim the rights of human beings.
The Fourteenth Amendment’s “one pervading purpose,” he wrote in the majority opinion, “was the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him.”
The railroads, however, had a lot of money to pay for lawyers, and railroad lawyer S. W. Sanderson had the reputation of being a pit bull in the courtroom. Undeterred, the railroads again and again argued their corporations-are-persons position all the way to the Supreme Court. The peak year for their legal assault was 1877, with four different cases reaching the Supreme Court in which the railroads argued that governments could not regulate their fees or activities or tax them in differing ways because governments can’t interfere to such an extent in the lives of “persons” and because different laws and taxes in different states and counties represented illegal discrimination against the persons of the railroads under the Fourteenth Amendment.
In 1882 the railroads’ attorneys floated the claim in a Supreme Court pleading that when the Fourteenth Amendment was drafted, “a journal of the joint Congressional Committee which framed the amendment, secret and undisclosed up to that date, indicated the committee’s desire to protect corporations by the use of the word ‘person.’ ”
It was a complete fabrication, and they lost the 1882 case: Nobody took the “secret-journal theory” seriously except Justice Field, who had ruled in the railroad’s favor in the Ninth Circuit Court.
Nonetheless, the railroad corporations were persistent, and in future cases the railroad attorneys were unable to produce or even prove legislative reference to the secret journal of the congressional committee.
In 1886, they received another chance while fighting another lawsuit for nonpayment of taxes from Santa Clara County, California. As usual, Justice Field had ruled in the railroads’ favor, suggesting in his Ninth Circuit Court ruling that they were “persons” suffering unequal justice because different counties used different methods to compute the property taxes the railroad should pay.
From there it went to the Supreme Court, where the railroad’s attorney, Sanderson, confronted an up-and-coming lawyer who would become internationally famous three decades later for his defense in a notorious murder case (the case was made into the movie The Girl in the Red Velvet Swing, starring Ray Milland). Delphin Delmas, while physically unimposing and certainly not the bear of a man Sanderson was, was one of the most brilliant orators of his day.
Delphin Delmas v. Corporate Personhood
In his pleadings before the Supreme Court in the Santa Clara County v. Southern Pacific Railroad case, Delmas said: “The defendant has been at pains to show that corporations are persons, and that being such they are entitled to the protection of the Fourteenth Amendment… The question is, Does that amendment place corporations on a footing of equality with individuals?”
He then quoted from the bible of legal scholars—the book that the framers of our Constitution had frequently cited and referenced in their deliberations in 1787 in Philadelphia—Sir William Blackstone’s 1765 Commentaries on the Laws of England: “Blackstone says, ‘Persons are divided by the law into either natural persons or artificial. Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic.’ ”
Delmas then moved from quoting the core authority on law to pleading common sense. If a corporation was a “person” legally, why couldn’t it make out a will or get married, for example?
“This definition suggests at once that it would seem unnecessary to dwell upon the idea that though a corporation is a ‘person,’ it is not the same kind of person as a human being, and need not, of necessity—nay, in the very nature of things, cannot—enjoy all the rights of such or be governed by the same laws. When the law says, ‘Any person being of sound mind and of the age of disc
retion may make a will,’ or ‘any person having arrived at the age of majority may marry,’ I presume the most ardent advocate of equality of protection would hardly contend that corporations must enjoy the right of testamentary disposition or of contracting matrimony.”
The entire idea was beyond the pale, Delmas said. “The whole history of the Fourteenth Amendment,” he told the court, “demonstrates beyond dispute that its whole scope and object was to establish equality between men—an attainable result—and not to establish equality between natural and artificial beings—an impossible result.”
The purpose of the Fourteenth Amendment, passed just after the Civil War, was clear, Delmas said. “Its mission was to raise the humble, the down-trodden, and the oppressed to the level of the most exalted upon the broad plane of humanity—to make man the equal of man; but not to make the creature of the State—the bodiless, soulless, and mystic creature called a corporation—the equal of the creature of God.”
He summarized his pleadings before the Supreme Court by saying, “Therefore, I venture to repeat that the Fourteenth Amendment does not command equality between human beings and corporations; that the state need not subject corporations to the same laws which govern natural persons; that it may, without infringing the rule of equality, confer upon corporations rights, privileges, and immunities which are not enjoyed by natural persons; that it may, for the same reasons, impose burdens upon a corporation, in the shape of taxation or otherwise, which are not imposed upon natural persons.”
Delmas had every reason to assume the Court would agree with him—it already had in several similar cases. In an 1873 decision, Justice Samuel F. Miller wrote in the majority opinion that the Fourteenth Amendment’s “one pervading purpose was the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him.”
The Crash of 2016 Page 16
