Are the Supremes Singing From the Wrong Songbook?

In 1976, Billboard magazine named Diana Ross the female entertainer of the century. Her celebrity status was originally secured during the 1960’s, as the lead singer for the group known as the Supremes. Ms. Ross still pursues an active performance career, and in fact participated in the Nobel Peace Prize Concert in Oslo in 2008. The new crop of Supremes (my appellation for Supreme Court justices) has not yet been invited to perform at that prestigious ceremony, nor have they achieved the celebrity status of the original Supremes. However, the nine justices comprising the group may yet attain lasting fame as a result of dramatically altering a century long tradition of legislative actions and even more years of court approved decisions (until now) considered precedents. Although, as of this writing, final decisions have not been announced, preliminary analyses indicate that a possible majority of Supreme Court Justices is singing words from a new, seemingly flawed songbook, a melody that could result in a rhapsody of reversion and a symphony of tsunamis. In the extreme, what might evolve as a result, is the complete dismantling of laws that go back a century, mandates that limit large moneyed interests from influencing elections as well as legislation with huge cash infusions. And it’s all Hillary’s fault.

That’s right! If it weren’t for Hillary Clinton, this adventure into what some consider the equivalent of judicial activism would not have occurred. Last year, at the height of the Democrat nominating fight, a group named Citizens’ United, a conservative non-profit organization, produced a film, the content of which is a disparaging portrayal of Hillary Clinton’s career. Of course, this organization had every right to make the film in an attempt to prevent her from achieving the nomination as the Democratic candidate. However, because the film was partially financed by corporate funds the Federal Election Committee (FEC) decided that type of funding was a violation of the 2002 McCain/Feingold Reform Act. (This legislation restricts corporate funds from being used directly for or against candidates). Based on this view, the FEC refused to allow the film to be shown.

That decision was appealed by Citizens’ United up to the Supreme Court; however, Chief Justice Roberts surprisingly viewed the case as having implications far beyond the narrow grounds as to whether or not the FEC decision was correct. At the original hearing in March, Roberts ordered that a special hearing be held in September. At this hearing, several of the more conservative justices (as well as Justice Roberts) questioned whether past campaign reform laws that went back to 1907, restricted corporation campaign funding practices, thereby contravening corporations’ constitutional rights to free speech. This action acutely expanded the scope of the original case, one that could have been resolved with a simple “Yes, the film can be shown,” or “No, the film cannot be shown.” By invoking the possibility that Constitutional principles might be involved, Justice Roberts has opened up the proverbial “can of worms,” possibly even a Pandora’s box.

In 1939, Winston Churchill, in a radio address announced, “I cannot predict to you the actions of Russia. It is a riddle, wrapped in a mystery, inside an enigma.” Despite the seeming simplicity of the Citizens United case as originally presented to the Court, it has now been expanded well beyond the original boundaries, and enters into the realm of complexities described by Churchill. Both sides in the case seem to be pursuing worthy objectives; one would validate a corporation’s right to free speech (in the form of money); the other would maintain a 100 year historical record of Supreme Court precedent decisions restricting finance campaign contributions by these same corporations. However, there is a cryptic, questionable and, yes, mysterious underlying aspect to the case that has been ignored by both the Supremes as well as by the media.

In the early days of the nation, corporations were viewed with suspicion and skepticism. Thomas Jefferson was quoted as saying, “I hope we shall take warning …and crush in its birth the aristocracy of our moneyed corporations which dare already to challenge our government to a trial of strength and bid defiance to the laws of our country

While Jefferson’s statement is explicit and defining, over the years corporations, that are mentioned nowhere in the Constitution, gained rights that climaxed in 1886 with a decision in an initially insignificant case that has evolved into a tour de force. At the crux of the issue then, and now, is a legal doctrine known as “corporate personhood.” In a broad sense, this means that artificially created corporations have the same constitutional rights, as do human citizens, especially as outlined in the Fourteenth Amendment that states in essence that, “…no state shall deprive any person [citizens of the U.S.] of life, liberty, or property without due process of law or the equal protection of law.” The amendment says nothing about corporations. Considering the skepticism and suspicion with which corporations were viewed originally, how did this turnabout occur?

After the Civil War, the number and size of corporations grew dramatically. Railroads particularly became a powerful force in the country, economically as well as politically. However, that industry was frustrated by regulations, restrictions, and taxes imposed by the states that had chartered them. In a number of cases, railroad corporations attempted to evade state encumbrances through lawsuits –– to no avail. However, a watershed moment presented itself in 1886 when the Supreme Court agreed to hear a case brought by the Southern Pacific RR against Santa Clara County in California. The case was about taxes imposed by the county on the value of railroad fences, and initially had nothing to do with corporate personhood.

Herein lies the mystery of the handling of this case. Even before oral argument took place, Chief Justice Morrison R. Waite announced: “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.” That statement does not appear in the official judgment of the case, nor is there any indication that any vote was taken to verify that opinion. In fact, when it came time for the Court recorder to write what is called the “header” of the recorded verdict (that is used only to recap the case for scholars who might be interested, and is not part of the official verdict), a newly uncovered letter by Chief Justice Waite suggested, “I leave it to you [the Court recorder] whether you want to mention it (his statement above) or not, in as much as we chose not to rule on the Constitutional issue in the case.”

In essence, the Chief Justice, in a written statement, affirms that the Court did not rule that corporations have rights under the Fourteenth amendment. Despite that non-reference, the header reads, “The defendant corporations are persons within the intent of the clause in section 1 of the Fourteenth Amendment to the Constitution of the United States, which forbids a state to deny to any person within its jurisdiction the equal protection of the laws.”

The key question is why, if the statement in the header has no application to the ruling in the real case, does it appear at all? This is where it gets really interesting. The Court recorder, one J.C. Bancroft, who entered the statement, was a Harvard trained lawyer, former member of the corrupt Ulysses Grant administration and (ponder this one), the former president of the Newburg and New York Railroad. Ah! Yes! Even in those days the smell of conflict of interest pervaded the system.

How can it be, that over a period of 123 years, legal judgments by every court in the nation, from the lowest to the highest, have been predicated on what appears to be misleading at best, deliberately fraudulent at worse, interpretations of a Supreme Court decision that never really occurred? Some have argued this was a conspiracy to advance the case of corporations, especially the railroads. Others feel it was merely a misinterpretation of the law, which seems peculiar since lawyers are usually extremely circumspect when it comes to examining case law.

In any event, the relevancy related to the current Citizens United case is obvious. If the original 1886 opinion, assumed to confer Fourteenth Amendment protection to corporations is invalid, in that it never really existed, how can the current crop of Supremes allow the case to go forward? Why did The Roberts’ Court transform a middling matter that could be disposed of with a simple solution into a major, major case with enormous constitutional consequences? Supreme Court Justices indubitably have an intimate knowledge of Court history. Why has this 1886 ruling not entered into the Citizens United court discussion?

Is the Roberts’ Court so consumed with the prospect of dismantling restrictions on corporate funding for elections and legislation that it is willing to ignore these historic facts? If so, the ramifications would be enormous beyond belief. At risk are over 100 years of Supreme Court precedents that if overturned could be viewed as an act of radical judicial activism, a practice considered anathema by many –– ironically, including the very Conservative Supremes who now seem to be arguing for the change.

In 1819, our greatest Supreme Court Justice, John Marshall, wrote, “Being the mere creature of law, it [a corporation] possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its existence.” If Chief Justice Roberts persists in the direction that was implied by his questions during the September hearing, comments that inferred that he was leaning toward a constitutional confrontation, the floodgates will open for an unrestricted tsunami of corporate money not only influencing, but directing who is elected and what legislation should prevail.

Should that occur Chief Justice Roberts’ legacy would be subject to comparison to the retort by Lloyd Bentsen to Dan Quail: “Chief Justice Roberts, I know of Chief Justice Marshall…and you are no Justice Marshall.”