Another take on the Supreme Court Decision

In the midst of the energetic discussion about last week's Supreme Court decision, there was an important argument that was missing.  Today I heard that argument from retired Supreme Court Judge Sandra Day O'Connor (left).

Full disclosure: I'm not an over-the-top fan of O'Connor.  Do I wish she were back on the court instead of her replacement, Samuel Alito (right)?  Of course I do.  I appreciate that she generally upheld Roe v Wade.  I was happy when she was in the majority in the Lawrence v. Texas case, which made unconstitutional anti-sodomy laws in the United States, thus guaranteeing equal treatment under the law for LGBT people.  However, I still can't forget (nor forgive) her role in Bush v. Gore in 2000, the Supreme Court case that decided a presidential election.

Perhaps it is because O'Connor is not a knee-jerk critic of the Supreme Court that makes her words so persuasive. While O'Connor hasn't explicitly expressed her opinion on the Supreme Court decision last week, she has suggested that people read her decisions to understand how she feels.  And she must feel discouraged, at the very least, since the Supreme Court overruled a decision that she wrote about the role of corporate campaign donations.

What she did state explicitly in her speech this week was her concern about the increasing lack of impartiality of the judiciary.  About 80% of the judges in the United States are elected.  Now that there are no caps on corporate campaign donations, the implications for our judicial system are profound.  The ability to "buy a judge" has been made quite easy; the idea that judges might decide what they feel is popular rather than what they feel is right has become a great threat.  This dramatically makes the balance of powers in our government quite unbalanced.  And since the judiciary has typically stood for the rights of the minority more than the other two branches of government, we can only imagine the negative effect this ruling will have on the civil rights of those groups who are not popular.

This decision becomes more disturbing every day.

The Supreme Court Decision

I'm no law expert, by any means, and I haven't read Thursday's ruling from the US Supreme Court.  (I have read parts of it.)  But this is what I understand:

      1. Originally, court was asked to rule on a very narrow question: whether some networks not willing to run an anti-Hillary Clinton movie by Citizens United was a violation of free speech.

      2. The court then decided to rule on a much larger issue: whether it is constitutional to limit the contributions from corporations to political candidates

      3. The vote was 5-4, with the most conservative judges being in the majority.  Clarence Thomas, although siding with the majority, wrote a separate opinion.

Here is what I think (as opposed to the facts as I understand them):

      1. Why do we continue to call "activists judges" those whose rulings are considered to be more left of center?  Thursday's decision seems to me to be a very activist decision, basically gutting a century of constitutional precedent.

      2.  What does this mean for Roe v. Wade?  Will it only take a narrow question concerning abortion to gut over three decades of precedents?

      3. And, finally, more to the topic of this blog, just what was going on in Clarence Thomas' mind in his separate opinion?  While agreeing with the majority that corporations have the right to use their funds to support candidates with few if no restrictions, he added a caveat.  The government does not have the right to require disclosure of the names of corporate donors to the public. 

     Here's what Clarence Thomas used as an example of the danger of requiring public disclosure: The Proposition 8 Question.  According to Thomas, supporters of Prop 8 whose names were made public were subject to threats, harassment, and in some cases physical violence.  He cites a number of specific incidents against Prop 8 supporters, while citing not one example of anti-gay violence or harassment.  One has to wonder why Thomas chose gay people and their fight for civil rights as the basis for his separate opinion.  One probably doesn't have to wonder how he will vote if the Prop 8 trial ever makes it to the US Supreme Court.

This decision goes far beyond equal marriage rights, so I don't want to give the impression that this is my only concern.  It isn't, by a long shot.  But it's disturbing that it ended up being part of the ruling in this way.