The New Republic

Well, let's make sure we are not suggesting that the Supreme Court should be intimidated into failing to interpret the the Constitution as it in good faith believes it should be interpreted. What makes the decision outrageous is not that it is wrong as a matter of constitutional interpretation, though it arguably is, but that the Court exceeded is constitutional authority in even reaching the issue.

- dhurtado

January 28, 2010 at 1:24am

Mmmm, I would say both, dhurtado. And it is not exactly clear that the stature of the principle about ruling narrowly -- not beyond what is necessary to decide the case or controversy -- actually is. Is it a rule of prudence or does it go to constitutional authority? I would say the former. Which the conservative justices grossly imprudent and grossly wrong on the meaning of the constitution. Alito's behavior is merely indicative of the extent to which these guys do not understand their place in the constitutional structure. They speak from the bench and neither the president nor the solicitor general shakes his head in the courtroom and mouths disagreement. When the president address the assembled congress, a justice with any sense at all remains as stoic as necessary. The president, elected by 10s of millions of Americans, is speaking.

- roidubouloi

January 28, 2010 at 2:10am

I hope that the Congress and the President move quickly to restate their own view in the form of a new statute that allows entities that are voluntary associations living off non-deducible donations say whatever they want while again restricting for-profit commercial entities. Then let's see if the court wise's up.

- roidubouloi

January 28, 2010 at 2:12am

Well, first, I don't like Rosen's notion that Presidents (and/or Congress) should try to intimidate Supreme Court Justices regarding the substance of their decision-making (and I don't think that was what Obama was doing). By the same token, I agree with you about Justic Alito's lack of decorum. Indeed, I'm not sure what Justice Alito was disagreeing with. Obama did not say that the decision was constitutionally incorrect or that the Court had overstepped its authority. He merely said that the Court reversed a century of precedent and opened the floodgates to unlimited corporate spending on elections. Those are objectively true propositions. Second, I do think that the "case or controversy" requirement in article III has been interpreted to mean that the Court may only decide matters that are placed before it. If the Court could reach out and invalidate legislation in the absence of a justiciable challenge to it, that would an intolerable breach of the separation of powers. Here, the Court did have jurisdiction over the matter because there was justiciable dispute between the parties. I suppose the question would be whether the "case or controversy" requirement applies to constitutional issues not raised by parties in cases over which the Court otherwise has jurisdiction. In principle, it should.

- dhurtado

January 28, 2010 at 8:06am

Since corporations are entirely the creation of the state, the state retains complete power to define what a corporation is. So even a federal law simply stating that legal entities other than living human beings are not persons under the law would be a useful first step (provided it is accompanied by clear and defensible legislative findings in both the record and in the text of the act itself). If the Supreme Court overturns that, then it has just judicialized American business entirely, and that would be a violation of the Constitution so clear and so fundamental that it would justify legislative and executive defiance. And if the Court fails to overturn that law, then it will have surrendered back to Congress the authority usurped in Citizens United.

- rhubarbs

January 28, 2010 at 8:19am

Also, Alito was simply wrong. What the president said was true. Not only his statement of the circumstances, as rozenson points out, but also his implication that the ruling allowed unlimited campaign spending by foreign corporations. Because the Court's ruling was based on application of First Amendment rights to free political speech, the ruling allows for no limitation based on nationality or citizenship. The First Amendment does not permit Congress to limit the speech of some people but not others; it says "Congress shall make no law," and nowhere speaks either of "citizens" or "the people" with regard to freedom of expression. If Alito believes that a legislative ban on political speech by either foreign companies or by the U.S. subsidiaries of foreign companies, then he will have to issue a second ruling that completely replaces the text of the First Amendment with his own whimsical interpretation. That ruling, combined with Citizens United, would be the most radically activist rewriting of the Constitution from the bench in American history. So no, Justice Alito, it is true that your ruling has opened the door to the Chinese Communist Party spending unlimited millions of dollars to influence American elections.

- rhubarbs

January 28, 2010 at 8:30am

Rosen: Please explain why a confrontation would be worse for the court than the administration? Hasn't there been times in history where the justices put the power of the institution ahead of ideological differences? If the Supreme Court were to strike down more of Obama's legislative agenda as unconstitutional, do you really see the populace rising up and taking it out against hte GOP? If Kennedy turns into Alito, that somehow ends up a net positive for the Dems? (Well, maybe, if they overturned Roe v. Wade, otherwise). This was actually the only part of the SOTU address I didn't like -- I thought there was something a little unseemly about Obama attacking the Supreme Court to its face when by custome he knew (or would have expected) they couldn't react with anything but stoic, dour faces (and highly unlikely to respond in a post-speech interview) -- it's like fighting someone with their hands tied behind their backs.

- Lymon1

January 28, 2010 at 8:32am

rhubarbs: are you really that clueless? 1. Corporations are NOT the creation of the state. Corporations pay for the state. Private sector pays for public sector. And some corporations already have this ability -- think media corporations. 2. ACLU, Sierra Club and other liberal groups supported the SCOTUS decision. Clearly not the disaster the some here think. 3. Alito was right. Obama’s description of the holding of the case was wrong. He said the court had “reversed a century of law.” The law that Congress enacted in early 20th century prohibited direct corporate contributions to political campaigns. That law was not at issue in the Citizens United case, and is still on the books. Rather, the court struck down a statute that barred corporations and unions from spending money directly from their treasuries Get a clue

- mr_rationale

January 28, 2010 at 9:33am

My clue tells me that an open door is an invitation to run through it. There are people lining up to challenge exactly that remaining constraint, and now they have a far better chance of winning as the basic principle of what the FA means in relation to corporate persons has been tilted.

- ironyroad

January 28, 2010 at 9:38am

mr_rationale, corporations don't exist in nature. Corporations are legal fictions, and so creations of the state, which establishes law. Every corporation's existence flows from a charter granted to it by the state. Congress could outlaw corporations tomorrow if it wanted to; if it did so, companies would have to be organized as proprietorships or partnerships instead. (The law already has this effect in some industries: You may organize as a proprietorship or a partnership, but not as a corporation.) You are irrationally confusing "corporation" with "private sector." Your appeal to authority (if the ACLU likes it, it can't be bad) is also a logical fallacy, and therefore irrational. Perhaps a new screen name is in order.

- rhubarbs

January 28, 2010 at 10:01am

I agree with Lymon. If you attack someone directly, it's really not that much for him to reflexively mouth some words. Why was Obama's attack not a similar breach of separation of powers protocol?

- bigm

January 28, 2010 at 10:06am

To be a breach of the separation of powers, one must be able to name a power usurped by a separate branch. What judicial power did President Obama usurp last night, either by exercising it himself or by preventing the judicial branch from exercising it? None. Merely speaking critically of another branch's exercise of its power is not a breach of the separation of powers.

- rhubarbs

January 28, 2010 at 10:39am

Here's a suggestion that would have a ton of popular appeal: a constitutional amendment to the effect that a corporation is not a "person."

- Mikelawyr2

January 28, 2010 at 10:54am

bigm, how in the world is Obama supposed to call out for remedial legislation unless he criticizes the ruling? And Republicans have laid down withering fire at the Supreme Court from Earl Warren on. As to it being done at the SOTU, Obama has zero other opportunities to address the Court directly. He can't call them on the phone, or bring them to the WH, and his mentioning it in a Press conference becomes meaningless because there is no way to ensure any of the members are even watching it. It was a horrendous decision, not just for the Federal level, but for the state level as well. Can you imagine for a moment any state legislator in a place like West Virginia can even hope to stand up to the Coal industry now? Mountaintop removal, sure, why not, what have mountains ever done for people anyway besides hold topsoil in place, prevent flooding, and create a picturesque environment. And local elections, parks? who needs parks when we can build another Walmart here? Since some posters seem unaware of the significance of the ruling, it allows companies to spend as much money attacking any candidate, or praising any candidate as it wishes. The distinction it won't give the money directly is meaningless since you can be damn sure there will be more than enough co-ordination between the campaign and the company as to what to say in the ads. Even for the Republicans it is terrible, since any meaningful education reform directed at Teachers unions will be far, far more difficult, all the teachers unions have to do is finance local school board candidates. Or do some posters imagine there are enough conservative millionaires willing to spend a ton of money for such a minor post of school board member?

- blackton

January 28, 2010 at 11:19am

A constitutional amendment defining personhood would instantly turn into an irresolvable debate about the start of human personhood with regard to abortion, and so would never pass either house of Congress. And the thing is, we want the courts to treat corporations as persons on most issues. It's just that the proper arbiter of when corporations should be treated like people is the statutory law, which is to say, Congress, not the Constitution or the Supreme Court.

- rhubarbs

January 28, 2010 at 12:28pm

Rhubarbs, you're missing something: the aforementioned poster you identified is not "Mr. Rational", but "Mr. Rationale" -- thus explaining why his commentaries seem to bear a thin veneer of logic, but collapse almost immediately under close examination. (On a related topic, TNR.com's latest "enhancement" stole the T from my username. Thanks guys. Another fine job.)

- austinexpa

January 28, 2010 at 12:47pm

austin, too funny. and the expa part too. By the way lymon and bigm, the Supreme Court is in no way obligated to attend the SOTU. While I sure as hell don't mind the reaction of Alito (really, bfd) he chose to go.

- blackton

January 28, 2010 at 1:06pm

Austin, you're full of shi

- jhildner1

January 28, 2010 at 1:46pm

The president is a political player. As such, it is not only his right, but his responsibility to criticize decisions of the court when he thinks it is appropriate. Let's remember, he criticized the decision -- he made no personal criticism of the Justices or claims about their motives. The Justices, on the other hand, are, ideally if not in reality, suppose to be above politics. Justice Alito should not have responded the way he did. I think one of the more unfortunate contributions my generation has made to the public discourse, which Alito demonstrated, is a "let it all hang out" attitude that has destroyed the difference between the public and the private; between one's public persona, responsibilities and ideals and one's personal life and inevitable human weaknesses. In the name of not being "hypocritical" we all now pay for an Alito's right to act boorish in public with the loss of our own expectation of privacy. The same reasoning that justifies Alito justifies discussions of the President's penis. Really, I don't need to see Alito's adolescent body language on display to discern that he and his collegues (wherever they land on the political spectrum) are not absolutely objective. Their history and actions tell me that. But, I would like to see enough public decorum demonstrated to suggest that objectivity may, occasionally, still be an ideal.

- esmense

January 28, 2010 at 2:33pm

Kudos to rhubarbs for his ever calm and lucid prose, and for his learned and patient explanations to the hapless Mr. Rationale. Of course, a corporation is not a "person," but it is a particular type of association of persons. Effectuating the rights accorded to persons does need to take account of the exercise of rights in the context of associations. That's a fancy way of saying that the matter cannot be concluded simply by noting that corporations are not persons. As I have thought about this in the past day or so, it seems to me that there are two distinct bases that suffice to limit or even prohibit political speech by corporations. The first is that they are accorded very special commercial privileges and a legally sanctioned organizational structure that allow them to gather enormous economic power. We do this because it is economically efficient. It seems that there is a compelling state interest in not allowing that economic power to distort the political process but in confining it to the commercial sphere that is its raison d'etre. It would be necessary to consider whether even that analysis unreasonably restricts the political speech of the "members" of the association, be they officers, employees, or shareholders. I don't see how. All of them remain completely free to use their own money to say whatever they want. The second avenue is to recognize that a corporation is also a species of trust. In trust law, we do not allow trustees to appropriate the trust for purposes of their own. That is what corporations are doing when they use corporate funds for political speech, appropriating the wealth of shareholders -- who undoubtedly have diverse political fews -- to advance the political views of the trustees. I think it should not be too hard to craft a statute prohibiting that if the predicates are made clear. This case illustrates more than most the danger of deciding a case on grounds not fairly raised, as dhurtado pointed out at the beginning. If the issues are what must be decided to decide the case, it is much easier to discern the implications of the decision one way or the other -- there is a specific situation that turns on that furnishes at least one sharp, real-world example. When the decision is made in the abstract, it is too difficult to see what is at stake. But, of course, the "conservatives" on the court are really radical reactionaries. Hence willing to engage in the most radical sort of legislation from the bench -- the complete opposite of the people they claim to be and of the judicial philosophy them claim to hold. Frauds one and all.

- roidubouloi

January 28, 2010 at 3:52pm

- The cry for judicial restraint by the GOP was only useful as code speak. They meant decisions that (till now) favored extending rights, access and legal entitlements that were contrary to Republican's interests. But I don't see the right jumping to the defense of Ortega or a Venezuelan corporation when they seek to influence an election. And everyone should be troubled by the opening this provided by broadening the definition of citizen as it could be applied to other corporate rights. ("We have a board meeting, we'll drop off an absentee ballot.") So comparing this to a New Deal Court may allow them more cover than they'll receive after everyone wakes up. We haven't felt the full influence of corporations who reside in jurisdictions beyond our reach. It's one thing to avoid taxes or liability and the GOP has been safe in defending corporations because they matched their constituency. It's not a partisan issue to be against dubious entities putting their thumb on election scales. Unlike the 30's SCOTUS (who did to FDR what congress could not), the right and the GOP will find this court left something to haunt them, long after this president's administration ends. -

- michael

January 28, 2010 at 5:00pm

Roi, I really like your trust analogy. But I would also like to point out that corporations are not associations of persons. They are legal abstractions that are distinct from the persons that own them (shareholders) or who control them (board members and officers). A corporation can have a single shareholder, and the shareholder and the corporation are distinct legal entities. You can sue the corporation (a legal abstraction ) in situations where you could not sue the sole shareholder (the owner of the abstraction). I think that reinforces the trust argument. How can the "control persons" of this abstraction use it to speak for all the other owners of the abstraction? Why do they get to use the abstraction as an extension of themselves for First Amendment purploses, while the other owners cannot? Should not the Court take that into consideration in deciding whether the government has a compelling interst in restricting "corporate speech" in situations in which it could corrupt the electoral process?

- dhurtado

January 28, 2010 at 9:04pm

austinexpa[t -- we'll keep the t warm for you], good point. I mentioned to mr_rationale a few weeks ago that "rationale" isn't the same as "rational," and indeed the term has a very distinctive meaning that is at variance with rationality.

- ironyroad

January 28, 2010 at 10:41pm

I agree dhurtado. As to the minor point about just what corporations are, I would still maintain that, leaving all legal fiction or construct aside, they remain, in fact, associations of persons for the primary objective in most cases of economic production. I don't mean to suggest that they are the same as what we refer to as unincorporated associations or free associations. As associations, the have rules of governance and structure some of which they elect and much of which is both created in the first instance and then given legal effect by government. Their status as either entities or quasi-persons for certain legal purposes is purely notional. You cannot in fact find the boundary of a corporation the way you can of a cell or something else that is corporeal in fact, not just in legal contemplation. The point I was trying to make was that, just as we should not confuse a corporation with an actual person but should keep track of when the analogy does and does not serve the intended purpose, we should not forget that a corporation does consist of real persons and real things having particular legal relations and, in the case of the people, social relations. Thus, we also cannot consider the proper application of constitutional rights without considering the real people involved and the manner in which their rights are affected. We can neither begin nor end with the legal construct. In this particular case, I do not see any means by which the freedom of speech of any of the actual persons is actually adversely effected by refusing to extend the fiction of corporate personhood to the point where the corporation is deemed to have those rights. Everyone in the association retains the freedom to speak. On the other hand, where the rights and privileges of targets of criminal investigation or of defendants are concerned, it may be necessary to accord corporations the same rights because, unless we do so, we effectively deny them to real persons. The fundamental point is that the rights inhere in persons, not things, and the issue that must always be addressed is the manner in which the rights of persons are affected, directly or indirectly, by the manner in which we treat the legal construct. That is real law in the modern sense rather in the utterly jejeune manner in which it is applied by these self-proclaimed conservatives. I swear, their legal reasoning is so thoroughly naîve, exactly what one expects from people who have not yet sat through their first class in law school, that they would have flunked any of my first year courses with this opinion. Writing this also puts me in mind of the fact that corporations are one of those places where freedom of speech is not at all absolute. You cannot say whatever you want in the workplace without losing your job, and the courts will enforce the right of a corporation to dismiss you without a second thought about a claim that your right to speak is protected by the First Amendment. The law will allow you to be punished and indeed assist in your punishment for saying what you want when you are moved to say it. There is clear recognition and consistent recognition throughout our law that an absolutely unfettered right of free speech can be destructive of a whole variety of other legitimate ends and must be limited to the extent necessary to protect those ends. We don't let the right of free speech swallow us whole. The inability or unwillingness of the conservatives to consider whether the purposes of free speech are advanced or undermined by this law, whether the restraints are relatively minor given the opportunities otherwise available to all of the persons involved, and whether there are not in fact other very important and legitimate ends to be achieved that cannot be achieved without some restriction. This whole case reinforces my "real rule of decision for self-proclaimed judicial conservatives": Property has rights, people do not. In cases where the rights of property are not directly at issue, as it was here, look to where the interests of the monied classes lie. The decision will be in their favor. I maintain that you can always tell what they are going to do, without regard to whatever doctrine they happen to invoke with which to do it, and that all of their "jurisprudence" -- original intent, constitutional literalism, federalism, judicial deference and restraint, flavor-of-the-month -- is discarded or ignored as necessary when it conflicts with the real rule of decision. See, Bush v Gore as Exhibit 1. See, Citizens United as Exhibit 2. These people are judicial Leninists who subscribe to what they imagine is a "higher truth" than law or the Constitution and thus feel completely morally justified in doing whatever they want and lying about it. They are liars in the service of radical ideology -- just like Lenin.

- roidubouloi

January 29, 2010 at 9:06am

There is also the famous line of cases about the people's right to demonstrative political speech in shopping malls because these have largely replaced the "town square." In that line of cases, the rights of property holders to limit the conduct of others when on their property were curtailed out of recognition that allowing such rights to prevail would leave too limited an opportunity for public political speech in the context of our social life as actually lived in the 20th century. Those courts were not confused by labels but sought to understand the concrete impact of the application of one doctrine or another the context of actual human existence.

- roidubouloi

January 29, 2010 at 9:14am

This is analysis? Between the 1880's and the late 1930's, the Supreme Court defined unprincipled activism when it was not being racist or just totally irrelevant. The Roberts Court doesn't have to be called out by Barack Obama to tar itself as unprincipled, dishonest, and racist, which will not unduly trouble the current Congress, or especially the next one, and about which there is nothing Obama can do. It will not upset Roberts, Alito, Thomas, or Scalia to be scolded by the President for doing exactly what they have been trying to do. I would be more interested in knowing if there is any validity to the Citizens United decision regardless of the obvious activism and overreaching involved. Isn't political speech exactly what the First Amendment is supposed to protect? Does a corporation have to be a person in order to have any rights? Or is it subject only to negative regulation? Not that it reallly matters--they're going to do what they want to do.

- mlottman

January 29, 2010 at 9:32pm

Roi- I agree with your general thesis. But I think that "corporation" conceived not as an association of people, but as a legal construct owned by one or more persons, is not only accurate, but strengthens your "trust" argument. With regard to a corporation owned by a group of shareholders, who elect a board of directors, who in turn hire officers, the directors and officers hold the asset (the corporation and its monetary and physical assets) in trust for the shareholders at large. The corporation is an asset in the same way that a commercial contract is an asset. But we wouldn't say that a contract "consists" of the parties to the contract. In any event, for directors or officers to use the commonly owned asset (the corporation) in a way that the shareholders in general cannot use it, and in fact may disagree with, cannot be squared, in my view, with affording First Amendment rights to corporations as such. As you say, regulation of corporate expenditures should not be analyzed in terms of how it affects the constitutional rights of corporations, but in terms of how it might affect the constitutional rights of the individual owners of corporations.

- dhurtado

January 30, 2010 at 3:35pm

Good questions mlottman. If we set aside the Court's overreaching in deciding a question it was not asked to decide, and assume that corporations are "persons" subject to First Amendment protection (the Supreme Court decided long ago, rightly or wrongly, that corporations are "persons"), then the correctness of the decision as a matter of constitutional interpretation is a closer call. You are right that political speech is at the top of the hierarchy of "protectable" speech. Restrictions on political speech should be subjected to "strict scrutiny." But "strict scrutiny" does not mean that restrictions on political speech are absolutely prohibited. Rather, it means that the government has a very heavy burden of showing that it has a compelling interest that trumps the right to speech in a particular context, and that the restriction is no broader than necessary to vindicate that interest. I have read only the syllabus (summary) of the Citizens United opinion, but the Court did invoke the strict-scrutiny analysis, but then, as far as I can tell, did not actually evaluate whether the government has a "compelling interest" in preventing corruption of the electoral process. If it did not actually walk through the strict-scrutiny analysis, then that would be another fundamental flaw in the Court's judgment.

- dhurtado

January 30, 2010 at 4:21pm

i have to disagree with rhubarbs that Alito's facial gestures are "nothing wrong." It was a breach of decorum and one more indicationa, if any more were needed, that Alito and his fellow reactionaries are incontinent. Alito can express his opinions in defense of the decision in many ways. He can make speeches, write law review articles, be interviewed. When the president is speaking to the Congress and nation, Alito owes a respectful demeanor as in indication that he respects the constitutional order (which or course he does note in fact, but we can fault him both for his disdain for the Constitution his small demonstration of that disdain). WE require officers of the court to maintain public respect for judges, on pain of contempt or worse. We require military officers to refrain from public criticism of the president, their commander-in-chief. All of this has the same purpose. We expect officials invested with special power to behave in a way that expresses their respect for and subordination to the constitutional order, even if the respect is coerced, as it is in a courtroom or in the military. Just imagine the outrage if the Solicitor General were bobbing his head in disagreement while the Chief Justice is reading an opinion from the bench. With his gesture, Alito expresses his disrespect for the one public official elected by all of the people of the United States while that official is engaged in a high public ceremony. As such, Alito expresses his contempt for the president, for the American people, and for our democratic norms. He is properly criticized for that. My criticism is that Alito is a disgrace and a perfect asshole. I didn't think he had any respect for democracy before. I am not surprised by his conduct in that it is a true expression of his attitudes. I am somewhat surprised at his public incontinence.

- roidubouloi

January 31, 2010 at 1:14pm

I basically agree roi, but I just can't get that worked up about it. It's not as though Alito directly confronted the President, or even knew that a camera was trained on him. It appeared to me if he were muttering to himself or the people sitting right next to him. On the other hand, the President, who also has plenty of other venues in which to criticize the Court's decisions, criticized the members of the Court to their faces and in a forum in which they were not supposed to react. While I richly enjoyed it, that act was not above criticism itself.

- dhurtado

January 31, 2010 at 6:23pm

I'm not that worked up about it either, dhurtado, because I pretty much thought Alito was a garbage jurist before. I am genuinely surprised though at his inability to keep a poker face in such a public setting, whether he was muttering to himself or not. I think it is a small bit of behavior consistent with his judicial arrogance, an arrogance that, notwithstanding all that baloney about strict this or that, defers to nothing, not history, not the language of the Constitution, not settled precedent, not to the acts of the people's elected officials, not to anything other than his own ideology. The president was the invited speaker of the evening. Not the justices. If Obama had been disdainful of the court, he would also have been rightly criticized, as would the Solicitor General for failing to behave in an appropriately deferential manner before the court. But Obama had every right to express his view of the decision, particularly of the political consequences, on an occasion when he was the speaker, whether the justices were sitting there or not. When Alito is invited to speak somewhere, he can disagree. On such an occasion, I would disagree with his views, but I would not question the propriety of his expressing them and would expect public officials present to comport themselves appropriately -- not because of Alito's views, but because they are supposed to respect the role of the Supreme Court in the constitutional order.

- roidubouloi

January 31, 2010 at 10:25pm

Just a tad hyperbolic, don't you think roi? I would be more inclined to say those things about Scalia's jurisprudence. I must admit, though, that I don't have time these days to read Supreme Court opinions, and have not read many of Alito's opinions. Are there any that you have in mind that would demonstrate that he has no fealty whatsoever to the Constitution, precedent or Congress?

- dhurtado

February 1, 2010 at 7:23am

As far as I can tell, Alito just votes the way Scalia tells him to and mouths the same absurd pieties on cue. That makes it difficult even to refer to him as a jurist. I don't know that Alito even has an independent thought in his head. But try this as an example of Alito being Alito: "Raymond Rybar, Jr., a federally licensed firearms dealer, had conditionally pleaded guilty to two counts of possessing an illegal machine gun under the Firearm Owners Protection Act of 1986. The weapons in question were a Chinese Type 54 7.62-millimeter machine gun (see note below), and a U.S. Military M-3 .45 caliber submachine gun. Rybar was charged with four felonies, but only convicted of two. The other two counts were for failing to purchase a tax stamp (this is not registration) for the machine guns under the National Firearms Act of 1934 for firearms that can not be classified under 18 U.S.C. § 922o. The court ruled in United States v. Rock River Armory (1991), that a conviction under 18 U.S.C. § 922o would violate the fundamental fairness found in the Fifth Amendment. Rybar argued that these convictions violated his Second Amendment rights as well as the commerce clause of the United States Constitution. The Third Circuit Court upheld his convictions 2-1. Authoring a notable dissenting opinion was from then Judge Samuel Alito. Alito argued that the law under which Rybar had been convicted should be vacated, because Congress, in its lawmaking, had not made sufficient findings regarding the impact on interstate commerce clause to fully justify the court deferring to Congressional judgment that the law was authorized by the Commerce Clause. Rather than actually ruling that the law was unconstitutional, Alito asserted simply that Congress had not sufficiently justified it, allowing that, had Congress made sufficient findings, he would defer to those findings." Where did Alito come up with that? Since when is Congress OBLIGED to make findings, outside of the statute itself, that sufficiently justify it to the court? The standard rule is that the statute is to be upheld unless the court is unable to find a rational basis. Of course, Congress finds it useful to make findings so that idiots like Alito don't get confused. But Alito makes his own idiocy a rule of law. What sort of "strict construction" is this? Alito actually makes the findings that are merely an aid to interpretation more important than the language of the statute itself. And now contrast with this: "On April 18, 2007, the Supreme Court handed down a decision ruling constitutional the Partial-Birth Abortion Ban Act. Justice Anthony Kennedy wrote for the five-justice majority that Congress was within its power to generally ban the procedure, although the Court left open the door for as-applied challenges. Kennedy, writing for the court, implied but did not absolutely reach the question whether the Court's prior decisions in Roe v. Wade, Planned Parenthood v. Casey, and Stenberg v. Carhart were valid, and instead the Court said that the challenged statute is consistent with those prior decisions whether or not those prior decisions were valid. Alito joined fully in the majority as did Chief Justice Roberts. Justice Thomas filed a concurring opinion, joined by Justice Scalia, contending that the Court's prior decisions in Roe v. Wade and Planned Parenthood v. Casey should be reversed, and also noting that the Partial-Birth Abortion Ban Act may exceed the powers of Congress under the Commerce Clause. Alito, Roberts, and Kennedy did not join that assertion. Justices Ginsburg, Souter, Breyer, and Stevens dissented, contending that the ruling ignored Supreme Court abortion precedent." Obviously, precedent doesn't weigh very heavily on Alito. But he seemingly has what can only be described as a bizarre understanding of the Commerce Clause. To keep it simple, if the states can, for example, ban private possession of sub-machine guns, it would, according to most thinking, be perfectly legitimate for the Congress to decide that such a ban should apply nationally so that these things cannot move in interstate commerce, both to support state bans and so that states are not disadvantaged by undertaking such a ban. If you cannot get that far in your reasoning, then you have to be willing to overrule pretty much all of the law under the Commerce Clause this since the early 30s and go back to what is now absurdly dubbed the "Constitution-in-Exile." If Alito had staked out the position that the 2nd Amendment barred a prohibition against private ownership of these weapons, I think he would have been wrong, but at least coherent. But does Alito think that the Federal government cannot prohibit possession, not even transfer, but possession of drugs although they too are a commodity in an national and even international market, like weapons? Not that I know of. Indeed, he signed onto an opinion that bars students from advocating drug use -- not actually using them, but advocating them, despite his precious understanding that the Free Speech clause requires allowing non-persons to engage in political speech. One can infer that Alito has not problem with Federal bans on drugs if he is ready to bar advocacy of drugs. Okay, fine, that's bad enough. But Alito doesn't have the same issues with a national ban on intact dilation and extraction (so-called "partial birth abortion") although I am not aware that the medical procedure can travel from state to state the way a weapon can. Now, you can argue that without a national ban individuals could travel from a state that does not permit this procedure to a state that does and that the ban in one state would thereby be undermined requiring Federal legislation for uniformity. Except that people actually have a constitutional right to travel from one state to the next even if it is solely in order to do in one place what is legal there but may not be legal in the place they are coming from. As an American, I have the right to locate myself in California rather than Idaho because I prefer to be governed by the law of California than the law of a barbaric place like Idaho. Idaho does not have some property interest in my person so that I can be forced to remain subject to Idaho law regardless of where I may be. Shades of Dred Scott. The Commerce Clause can control commerce in things, but it has never been understood to limit the movement of people (unless they themselves are being traded and the Federal government is acting in the interest of, say, preventing commerce in people) and even the withholding by a state of a benefit from a recent arrival has been held an unconstitutional burden on the right to travel. Give Justice Thomas credit for some semblance of intellectual coherence. He has an extremely restricted reading of the Commerce Clause, but at least it is a reading. Alito in effect thinks th Commerce Clause applies to people taking themselves to another place but does not apply to weapons --actual traded commodities -- that inherently can move in interstate commerce and in fact do so to a rather large extent in order to evade state laws. If that is not garbage, what is? How can this possibly be squared with fealty to the Constitution, precedent, or Congress? The man just votes for what he would and would not vote for if he were a senator or what he would or would not support if he were president and then calls it the Constitution. Can this be considered jurisprudence? He should never have been confirmed. His disavowals of his association with a racist organization at Princeton should never have been credited.

- roidubouloi

February 1, 2010 at 9:01am

Oh, and what of Alito's supposed Federalism? How and why doesn't California have the power to allow a particular medical procedure not otherwise unconstitutional? Garbage. Alito is a hypocritical prick who thinks that Americans should be governed by his own religious beliefs.

- roidubouloi

February 1, 2010 at 9:05am

Thanks Roi. You are making a good case. Though I still say that the inflammatory rhetoric, while highly entertaining, might undercut the merits of the message to someone who is not predisposed to accept it, as I am. Be that as it may, I agree with you that not only Alito, but Roberts, and, in particular Scalia, have a faux fealty to strict construction and originalism. Indeed, as you may know, while on the 3d Circuit, Alito was known in some circles as "Scalito." (BTW, I argued before Alito once while he was on the 3d Circuit. It was a relatively insignificant case regarding personal jurisdiction.) And the demand for congressional fact-finding also found its way into Roberts' (and Thomas') opinion in the voting rights case. The 15th Amendment empowers Congress to enact legislation to enforce the Amendment's protections. It does not vest the Court with power to review such legislation to determine whether it in fact furthers the objectives of the 15th Amendment or is otherwise good public policy. At most, the Court would have an implicit power to invalidate legislation enacted under the 15th Amendment where it bears no rational relationship to the 15th Amendment's objectives. But Roberts and Thomas (and I presume Alito) are prepared to sit as an uber-legislature and veto portions of the Voting Rights Act if congressional fact-finding does not satisfy it. I actually find much more arrogance in that position than in what the Court did in the Citizens United case.

- dhurtado

February 2, 2010 at 8:49am

If I can't entertain myself here, dhurtado, where am I going to do it? Besides, I don't think anyone ever persuaded anyone of anything they weren't at least disposed towards. My purpose is to engage in the sort of hyperbolic inflammatory behavior that is regarded as normal on the right because I don't at all buy the notion that we should rise above such behavior. We cannot afford to. Politics is a mudfight (or maybe a shitfight), at least the scummy Republicans have made it so. If we are too concerned about sullying ourselves with their tactics, they win just be shrieking louder. Thus, I think it is our obligation to pummel them rhetorically at every and every opportunity. Since Roberts, Scalia, and Alito are utterly dishonest pricks and thugs, there is, in my opinion, no reason not to say so out loud. Oddly, Thomas is a bit different. I am appalled by his principles, but he seems actually to have some. He is sort of intellectually consistent whereas the other three employ "jurisprudence" merely as cover for their completely politicized decision-making. Yes, the rational relationship test is the standard. But, like everything else in the law, the radical reactionary justices ignore that too as and when convenient to achieve the outcome they want. And as far as the fact-finding, it is not as if these creeps engage in anything that might be considered actual fact-finding. They just make up facts they find congenial to the outcome. In all of these matters, there is no shortage of arrogance and disregard for law and the Constitution on the right. I don't think these people really believe in "law" at all. They believe in power. Law is merely one of the instruments of power, to be deployed as and when useful and ignored as and when useful to the ends they seek -- domination of the country by the monied class that then regulates the social and sexual behavior of everyone else in the interest of "order" whiling according to itself the right to do anything that money can buy. Mores are for the little people after all. It is a fascist/royalist vision to the core. Glad you got to this though. Always happy to have your thoughts. R.

- roidubouloi

February 2, 2010 at 10:30am