Supreme Court to dismiss all pretense of democracy

[SecondEdition]

this is the worst.

[Bradley R. Weissenberger]

You know, folks, there are all of six posts in the Illinois primary thread.

Still, I'm giving The Chicken to John Roberts.

[SecondEdition]

Keep fucking that chicken, John Roberts.

Then, it is to be hoped that someone takes pictures of you doing so, ruins your Supreme Court career with them and gets you tossed out on your ear.

[Big John]

C. Thomas: Some questioning of Court 'irresponsible'

http://news.yahoo.com/s/ap/20100204/ap_ ... NvbWVxdQ--

Don't question you betters. You might think they are are just corrpted fools.

[warmowski]

Not that it applies much here, but because I just learned this a couple of weeks ago, I'll wave it around: the Gates in K&L Gates is Bill's daddy. They bought law firm Bell, Boyd and Lloyd here in town not long ago. Okay, who cares.

Can you imagine being a sales guy for a TV network or web ad network or Google working the political arena/season? As it is, there's ten dozen front groups and paid-for-by committees and what have yous who buy commercial time from you. Now there will be twenty dozen. Maybe many of the same persons will be doing the buying under new banners. Maybe sales guys would be invaluable resources to investigative journalists towards building a cocksucker fambly tree.

Then again, maybe handing over the ad buying process to a new crop of cocksuckers aged in their middle 20s is the right cocksucker move there.

Blake, when we hand you $12 million on Monday and on Friday there's still $2 million left, it makes us wonder if you're the right material for us. Are you the right material?

-r

[Auntie Ovipositor]

Radar Online/HuffPo gave me some serious blueballs this afternoon.

Fuck. Had it been true, I'd probably have taken the rest of the day off and gotten plastered.

That story was waaaaay too good to be true when Radar published it. Their lack of sourcing made it more so.

Face it - we've got another 15-20 years before he has a heart attack and finally has power wrenched from his hands.

Scalia and Thomas on the other hand...

[Ty Webb]

Was just revisiting this issue and decided to look at an opinion contrary to my own, but rooted in legal interpretation rather than higher-order polemic. Led me to this:
http://www.yalelawjournal.org/the-yale- ... s-critics/

It's the Yale Law Journal, so of course it has a conservative, establishment slant. It's insightful for the layperson of any ideological stripe nonetheless. But it was most useful for leading me to this excellent Stanley Fish essay in the NYT, which I found fascinating. (Fish teaches First Amendment law and really digs into the marrow of this decision and the underlying layers of precedent that led us to this pass. Plus the guy is a hell of a literary critic to boot. What a show-off.)

http://opinionator.blogs.nytimes.com/20 ... dment-for/

[Antero]

It's the Yale Law Journal, so of course it has a conservative, establishment slant. It's insightful for the layperson of any ideological stripe nonetheless. But it was most useful for leading me to this excellent Stanley Fish essay in the NYT, which I found fascinating. (Fish teaches First Amendment law and really digs into the marrow of this decision and the underlying layers of precedent that led us to this pass. Plus the guy is a hell of a literary critic to boot. What a show-off.)

http://opinionator.blogs.nytimes.com/20 ... dment-for/

This Stanley Fish article is shit, written by a man whose understanding of 1st Amendment law and precedent is shallow as a puddle of piss. It offers a dull, simplistic understanding of the workings of law, with a heavy layman's bias that lends unjustified credibility to strict construction (Scalia et al).

This is not the "marrow." This is an embarrassing and idiotic gloss on the subject by a man who is, as Brian Leiter put it, philosophically incompetent.

[Ty Webb]

Okay. Antero, would you like to point out the weaknesses or inaccuracies of Fish's essay?

connor, would you care to point out exactly what in either of the links is defending the wisdom of the decision?

My point is that it's far too simplistic to point to this decision and say "Five Supreme Court justices suck Big Business' dick and 4 don't." The Yale author and Fish were at least right in pointing out that this decision was informed by, and retroactively comments on, many decades of First Amendment analysis and jurisprudence, weren't they?

Neither of those links add anything whatsoever to this discussion? Or is it just time-saving to froth about it in a Manichean manner?

I'm not defending Citizens United. It is, on its face, destructive to democracy. But that does not make inherently disingenuous from a legal standpoint, does it? Was the majority opinion in this case utterly political and legally disingenuous? Can a SCOTUS decision be both legally reasoned, if not legally sound, and counterproductive to democracy? After all, the integrity of our representative democracy and the intricacies of our legal system are not necessarily mutually and perfectly inclusive. They work in a series of additions and subtractions, pushes and pulls, do they not?

This is a complex matter that I thought might be worth some nuanced discussion rather than the internet version of pamphleteering.

[Ty Webb]

Going to war is not a SCOTUS decision. Legal decisions are based on thousands upon thousands of words of precedent, hours of argument, and the labyrinthine interweavings of previous legal argument.

Is there nothing worthwhile about discussion of how an abhorrent decision came to be made? Judgment is not the sole objective of discourse.

And honestly, I know your post came from justified outrage. I'm more interested in Antero elaborating on his post.

[Antero]

Okay. Antero, would you like to point out the weaknesses or inaccuracies of Fish's essay?

Not really, because every minute spent with that man's shitty writing is wasted, but I'll do it for the benefit of the forum.

Kennedy, along with Justices Roberts, Alito, Thomas and Scalia (the usual suspects), is worried that the restrictions on campaign expenditures imposed by the statute he strikes down will “chill” speech, that is, prevent some of it from entering the marketplace of ideas that must, he believes, be open to all voices if the First Amendment’s stricture against the abridging of speech is to be honored.

"Chill," as applied to free speech, is a legal term. To "chill" speech does not mean "to prevent some of it from entering the marketplace of ideas." Chilling speech means to cause citizens to contract the scope of protected speech out of fear of consequences, both clear and unclear.

An example would be the recent 2nd Circuit decision (FOX Television Stations vs. FCC) that ruled that the FCC's indecency regulations were unconstitutionally vague. The court said that the free speech of broadcasters was chilled by the regulations: because they are too vague the broadcaster cannot know what content will draw the agency's attention, and therefore will censor speech that would be both protected by the 1st Amendment and permitted under the regulations. That's what "chill" means.

In Citizens United, Kennedy used the term "chill" in a similar fashion - i.e., the fashion it is actually used - referring specifically to the threat of litigation and fines.

What Fish wrote is simply wrong.

He also says that "The word most important to Justice Kennedy’s argument (he writes for the majority) is “chill,"" which is also wrong: The important words are "association" and "corporate speech." The question of "chilling" is ultimately minor in the social scheme - a much more narrowly tailored decision could have been written, based around the chilling of speech and the uncertainties surrounding this particular statute, that found the statute unconstitutional while continuing to allow restrictions on corporate expenditures in general. That's part of the fucked up thing about Citizens United: there was no judicial restraint, and the resulting opinion was broad in a way that indicated a particular policy agenda.

But even if they thought otherwise, even if they were persuaded by the dire predictions Stevens and those he cites make, they would come down where they do; not because they welcome corruption or have no interest in forestalling it, or discount the value of being concerned with it, but because they find another interest of more value, indeed of surpassing value. That is the value of being faithful to what they take to be the categorical imperative of the First Amendment, which, with respect to political speech, forbids the suppression of voices, especially voices “the Government deems to be suspect” (Kennedy); for if this voice now, why not other voices later?

First: He is tonguing Kennedy's balls so hard.

Second: Describing the First Amendment as a "categorical imperative" is idiotic per se. He's slapping a philosophical universality onto the raw text of the Bill of Rights that is simply absent in jurisprudence. A categorical imperative - brush off your Kant - is absolute, and controls in all circumstances. This is not how the 1st Amendment - nor law - works, and to mistake the text for a literal and absolute statement is a rank legal error.

The idea that you may have to regulate speech in order to preserve its First Amendment value is called consequentialism.

That is not called consequentialism. Consequentialism is a general philosophical outlook. Does he mean that such an outlook is consequentialist? Maybe, but I expect a little more from a professor.

For a consequentialist like Stevens, freedom of speech is not a stand-alone value to be cherished for its own sake, but a policy that is adhered to because of the benign consequences it is thought to produce, consequences that are catalogued in the usual answers to the question, what is the First Amendment for?

Saying that Justice Stevens does not value freedom of speech for its own sake is an absurd slander, unsupported by the text of the case or precedent, and completely out of line.

Here's where we get to the serious problem with the piece: It engages in an extended bout of fantasy where the outcome of the case is determined by a clash, not of legal doctrines, but of high school-level yin/yang teleology and deontology. He is not describing two schools of legal thought: judges both uphold basic principles and engage in the analysis of outcomes. For fuck's sake, he talks about chilling speech up above, when discussing the majority opinion. A chill is a consequentialist analysis.

Fish's insistence that the majority's application of the First Amendment is "principled" and simply the application of a principle is the result of either intentional deception or colossal stupidity.

I'm going to side with stupidity:

In other words, forget about what speech does or does not do in the world; just take care not to restrict it. This makes things relatively easy. All you have to do is determine that it’s speech and then protect it

Forget about what speech does? Easy? Are you fucking kidding me? Determining what is or is not speech has been an extremely complex topic for the nation's entire history! Burning a flag is protected speech. Burning a cross is not - the court found that, given its history, it amounted to threats and intimidation. Threats and intimidation are not protected, despite being speech. Conspiring to commit a crime is speech, but it's also illegal. Wearing a jacket is speech.

Is money speech? The court says "yes." This is not "relatively easy."

Only Thomas has the courage of the majority’s declared convictions. Often the most principled of the judges (which doesn’t mean that I always like his principles), he is willing to follow a principle all the way, and so he rebukes his colleagues in the majority for preferring the value of more information to the value the First Amendment mandates — absolutely free speech unburdened by any restriction whatsoever including the restriction of having to sign your name. Thomas has caught his fellow conservatives in a consequentialist moment.

ONE: Thomas is not a principled judge. He's a twat. He's only principled insofar as his views on the Constitution are as opposed to modernity as possible.

TWO: Fish has committed a serious intellectual wrong by declaring the majority, and concurrences, to all be faithful application of a single principle. What, pray tell, is that principle? It's not the literal application of the First Amendment text, because the concept that putting your name down is a restriction is not in the text.

God, I'm sick of reading this fuck's shitty writing. Let me cut to the chase.

The proposition that the decision in Citizens United is the result of a clash between teleological and deontological views of the First Amendment is absolutely fucking wrong. Not only does it fail to address the literal positions of the justices and the various doctrines that underlie the opinions, it also completely leaves out the questions of corporate personhood and money-as-speech.

For example, an originalist - like Scalia usually is, mind, but which he's conveniently abandoned here - could apply the First Amendment in the strictest way possible, but conclude that the founders never intended to give corporations those rights, or that the original understanding of "speech" as intended at the time the amendment was written did not extend to money.

These are the actual issues in the case.

Fish doesn't touch them.

He doesn't touch precedent.

He boils the entire thing down into a shitty freshman philosophy argument so as to bow at the altar of strict constructionism and beatify, as "principled," one of the most hideous Supreme Court decisions in history - hideous both in letter and in spirit.

[Antero]

If you'd like more fun with Fish, there's another New York Times article where he makes the argument that both religion and science rely on "faith."

I basically spat my whiskey all over the computer when I read that one, because that's the sort of shitty argument that you get from the awkwardly-devout home-schooled kid in his first quarter of a college philosophy class, having just discovered epistemological relativism. It's the sort of argument that is made by people who think they are clever and yet are completely ignorant of philosophy.

Stanley Fish has the philosophical acumen of a high school philosophy class led by a moonlighting PE teacher.

[enframed]

Okay. Antero, would you like to point out the weaknesses or inaccuracies of Fish's essay?

Not really, because every minute spent with that man's shitty writing is wasted, but I'll do it for the benefit of the forum.

Kennedy, along with Justices Roberts, Alito, Thomas and Scalia (the usual suspects), is worried that the restrictions on campaign expenditures imposed by the statute he strikes down will “chill” speech, that is, prevent some of it from entering the marketplace of ideas that must, he believes, be open to all voices if the First Amendment’s stricture against the abridging of speech is to be honored.

"Chill," as applied to free speech, is a legal term. To "chill" speech does not mean "to prevent some of it from entering the marketplace of ideas." Chilling speech means to cause citizens to contract the scope of protected speech out of fear of consequences, both clear and unclear.

An example would be the recent 2nd Circuit decision (FOX Television Stations vs. FCC) that ruled that the FCC's indecency regulations were unconstitutionally vague. The court said that the free speech of broadcasters was chilled by the regulations: because they are too vague the broadcaster cannot know what content will draw the agency's attention, and therefore will censor speech that would be both protected by the 1st Amendment and permitted under the regulations. That's what "chill" means.

In Citizens United, Kennedy used the term "chill" in a similar fashion - i.e., the fashion it is actually used - referring specifically to the threat of litigation and fines.

What Fish wrote is simply wrong.

He also says that "The word most important to Justice Kennedy’s argument (he writes for the majority) is “chill,"" which is also wrong: The important words are "association" and "corporate speech." The question of "chilling" is ultimately minor in the social scheme - a much more narrowly tailored decision could have been written, based around the chilling of speech and the uncertainties surrounding this particular statute, that found the statute unconstitutional while continuing to allow restrictions on corporate expenditures in general. That's part of the fucked up thing about Citizens United: there was no judicial restraint, and the resulting opinion was broad in a way that indicated a particular policy agenda.

But even if they thought otherwise, even if they were persuaded by the dire predictions Stevens and those he cites make, they would come down where they do; not because they welcome corruption or have no interest in forestalling it, or discount the value of being concerned with it, but because they find another interest of more value, indeed of surpassing value. That is the value of being faithful to what they take to be the categorical imperative of the First Amendment, which, with respect to political speech, forbids the suppression of voices, especially voices “the Government deems to be suspect” (Kennedy); for if this voice now, why not other voices later?

First: He is tonguing Kennedy's balls so hard.

Second: Describing the First Amendment as a "categorical imperative" is idiotic per se. He's slapping a philosophical universality onto the raw text of the Bill of Rights that is simply absent in jurisprudence. A categorical imperative - brush off your Kant - is absolute, and controls in all circumstances. This is not how the 1st Amendment - nor law - works, and to mistake the text for a literal and absolute statement is a rank legal error.

The idea that you may have to regulate speech in order to preserve its First Amendment value is called consequentialism.

That is not called consequentialism. Consequentialism is a general philosophical outlook. Does he mean that such an outlook is consequentialist? Maybe, but I expect a little more from a professor.

For a consequentialist like Stevens, freedom of speech is not a stand-alone value to be cherished for its own sake, but a policy that is adhered to because of the benign consequences it is thought to produce, consequences that are catalogued in the usual answers to the question, what is the First Amendment for?

Saying that Justice Stevens does not value freedom of speech for its own sake is an absurd slander, unsupported by the text of the case or precedent, and completely out of line.

Here's where we get to the serious problem with the piece: It engages in an extended bout of fantasy where the outcome of the case is determined by a clash, not of legal doctrines, but of high school-level yin/yang teleology and deontology. He is not describing two schools of legal thought: judges both uphold basic principles and engage in the analysis of outcomes. For fuck's sake, he talks about chilling speech up above, when discussing the majority opinion. A chill is a consequentialist analysis.

Fish's insistence that the majority's application of the First Amendment is "principled" and simply the application of a principle is the result of either intentional deception or colossal stupidity.

I'm going to side with stupidity:

In other words, forget about what speech does or does not do in the world; just take care not to restrict it. This makes things relatively easy. All you have to do is determine that it’s speech and then protect it

Forget about what speech does? Easy? Are you fucking kidding me? Determining what is or is not speech has been an extremely complex topic for the nation's entire history! Burning a flag is protected speech. Burning a cross is not - the court found that, given its history, it amounted to threats and intimidation. Threats and intimidation are not protected, despite being speech. Conspiring to commit a crime is speech, but it's also illegal. Wearing a jacket is speech.

Is money speech? The court says "yes." This is not "relatively easy."

Only Thomas has the courage of the majority’s declared convictions. Often the most principled of the judges (which doesn’t mean that I always like his principles), he is willing to follow a principle all the way, and so he rebukes his colleagues in the majority for preferring the value of more information to the value the First Amendment mandates — absolutely free speech unburdened by any restriction whatsoever including the restriction of having to sign your name. Thomas has caught his fellow conservatives in a consequentialist moment.

ONE: Thomas is not a principled judge. He's a twat. He's only principled insofar as his views on the Constitution are as opposed to modernity as possible.

TWO: Fish has committed a serious intellectual wrong by declaring the majority, and concurrences, to all be faithful application of a single principle. What, pray tell, is that principle? It's not the literal application of the First Amendment text, because the concept that putting your name down is a restriction is not in the text.

God, I'm sick of reading this fuck's shitty writing. Let me cut to the chase.

The proposition that the decision in Citizens United is the result of a clash between teleological and deontological views of the First Amendment is absolutely fucking wrong. Not only does it fail to address the literal positions of the justices and the various doctrines that underlie the opinions, it also completely leaves out the questions of corporate personhood and money-as-speech.

For example, an originalist - like Scalia usually is, mind, but which he's conveniently abandoned here - could apply the First Amendment in the strictest way possible, but conclude that the founders never intended to give corporations those rights, or that the original understanding of "speech" as intended at the time the amendment was written did not extend to money.

These are the actual issues in the case.

Fish doesn't touch them.

He doesn't touch precedent.

He boils the entire thing down into a shitty freshman philosophy argument so as to bow at the altar of strict constructionism and beatify, as "principled," one of the most hideous Supreme Court decisions in history - hideous both in letter and in spirit.

Great post, Antero. Thank you.

[Chromodynamic]

If you'd like more fun with Fish, there's another New York Times article where he makes the argument that both religion and science rely on "faith."

I basically spat my whiskey all over the computer when I read that one, because that's the sort of shitty argument that you get from the awkwardly-devout home-schooled kid in his first quarter of a college philosophy class, having just discovered epistemological relativism. It's the sort of argument that is made by people who think they are clever and yet are completely ignorant of philosophy.

Stanley Fish has the philosophical acumen of a high school philosophy class led by a moonlighting PE teacher.

The preceding posts were fantastic, thank you!

[Auntie Ovipositor]

The entire decision is flawed, and anyone who defends it can go fuck themselves

As I posted earlier, the ACLU agrees with this decision and they filed an amacus brief during the trial.I'm more convinced by their legal arguments than yours. Have you read the Bipartisan Campaign Reform Act of 2002 (which the Citizens United case finished striking down)?

Unfortunately, group speech is complicated issue, and the law trying to address it was shitty. As in, it was badly written and didn't have any solid legal underpinning. The basis for the Bipartisan Campaign Reform Act of 2002 was political, not legal. In a tit-for-tat, corporations and unions were barred from engaging in "electioneering communications." That way what were perceived as the big spenders on both sides would have their hands tied.

If you want to differentiate types of what are now considered speech (which I think we can all agree is obviously needed) you need to establish a legal basis for doing so. You want to establish that money isn't speech anymore than violence is you need to do so (because sometimes in the law you need to establish the obvious). You set up a framework that doesn't just address the immediate situation.

And while I completely agree with the political reasons for the law being passed, this law didn't do that. In another century the situation that Bipartisan Campaign Reform Act of 2002 is supposed to address will be entirely different, but that law would still be there (had it not been struck down) and likely ineffectual. All of those Donkeys can't wear dresses on main street laws on the books in lots of cities look silly now because they were designed to address situations that are long dead and they lacked legal principle. History has shown them to be stupid laws.

You know what else is a shitty legal decision? Roe v. Wade. I'm 100% for abortion rights being expanded to the same level as sprained ankle rights (ie, universally available and unquestionable) and have done security at clinics and rallies several times over the last 20 years, so make no mistake about where I stand.

But the legal basis for RvW? Terrible. Blackmun's constitutional arguments are paper thin at best. While that decision has granted rights for the past 40 years, it has done nothing to guarantee them as part of our society. Which is fucked up because some day sooner than later someone's going to mount a serious challenge to it (probably on the Koch brothers' dime) and it's going to go down.

So, as with the Bipartisan Campaign Reform Act of 2002, what we need is a better law establishing (and fortifying) legal principles. We need to address the big issues and establish a legal framework for doing so or we'll keep losing in small increments like this.

[Ty Webb]

Thanks, Antero (and Auntie)!

I could tell (and could guess) that you had a far deeper understanding of the underlying issues and problems with Fish's essay and that was precisely what I was after. Very enlightening and I'm sure I'm not the only person here who appreciates you taking the time to put it down.

[Auntie Ovipositor]

Immaterial. Constitutional or not, Section 203 was addressed in a way that is not legal.

The SCOTUS was not designed to create it's own court cases and have them fought out to make a larger point. Section 203 is not what was being argued in the case set out before the court. Roberts forced the plaintiff and defendant to argue this point, but it had already been abandoned by both parties. Citizens United dropped it's challenge to section 203. Roberts made them argue against it anyway. That is NOT LEGAL. Anything else is just noise. It's all bullshit.

Roberts should be impeached.

I agree with all of this, but you can't unring that bell. If you were able to magically nullify that verdict today, someone would go back to court with the previous opinion in hand and re-argue it. And they would win. It was a shitty politically-motivated move by an activist supreme court and Stevens was bang on when he wrote:

The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.

But regardless, the law is dead now. Sometimes laws get to be laws in really shitty ways, sometimes they are stopped from being laws in really shitty ways.

It's also worth noting that the first big verdict of the Warren court (above reproach in my opinion and, I'm gonna guess, everyone here's opinion as well) gamed the calendar in a similar way. Associate Justice Felix Frankfurter asked that Brown v. Board of Ed. be re-argued at a later date on 14th Amendment grounds for tactical - not judicial - reasons: he wanted the current Chief Justice to finish dieing so that he could be replaced by Warren (who then hit it out of the park and convinced the other justices to deliver a unanimous verdict). He also held that a unanimous verdict was essential, which in retrospect turned out to be pretty bright.

Now, they never went so far as to ask that a case be re-argued over an issue that had been dropped - that is unprecedented and extreme - but they did use a very loose interpretation of the rules to get what they wanted.

[Auntie Ovipositor]

I understand and agree with that argument, but the case is already settled.

[Wood Goblin]

[url=http://www.latimes.com/news/nationworld/nation/sc-dc-0330-court-prosecutors-20110329,0,4120668.story]Well, this little bit of 5-4 activist court bullshit will ruin your appetites.
[/url]

[iembalm]

If the police knock on your door, be very, very quiet.

http://news.yahoo.com/s/ap/us_supreme_c ... less_entry