Tag: sotomayor

Wise Latina

by on Sep.18, 2009, under Politics

During arguments in a campaign-finance case, the court’s majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled.

But Justice Sotomayor suggested the majority might have it all wrong — and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.

Judges “created corporations as persons, gave birth to corporations as persons,” she said. “There could be an argument made that that was the court’s error to start with…[imbuing] a creature of state law with human characteristics.”

Sotomayor Issues Challenge to a Century of Corporate Law, Jess Bravin in the Wall Street Journal, 9/17/2009

It would be easy to make too much of this. So why not do the easy thing? Disappointment is clearly going to be the fighting liberal’s default mode for the duration of the Obamallenium, but you can’t have real disappointment without hope. You can’t have low results without high expectations. Under the beach, the paving stones!

In 1996, Ralph Nader ran for president on the Green Party ticket. The relationship, and Ralph in general, would curdle, but speaking in Yale’s Battell Chapel a few days before Clinton’s reelection, Ralph made a very strong case that the only means by which democracy could be meaningfully restored was by curbing the corporation’s outsize role in American civic life. It was a clarifying and totalizing critique that made the sand-the-edges interventions of Clintonism comprehensible and wan. A week later, in Ward One, Nader outpolled Bob Dole by four votes. (As I remember it, Clinton had around 700 votes and Ralph and Bob were each in the high 300’s.)

The problem of corporate personhood was one that Nader had been flogging for a decade; “Corporations Are Not Persons” ran in the New York Times in 1988. As Nader’s stature as a left critic has been dwarfed by his ego-outburst electioneering, critiques of corporate power that address this originary judicial interpellation have become harder to find.

Meanwhile, the trend in liberal jurisprudence is to accommodate the corporation. Last year, Jeffrey Rosen’s New York Times Magazine piece “Supreme Court, Inc.” demonstrated at length the comfort level that the U.S. Chamber of Commerce has with the supposedly liberal wing of the Supreme Court:

In opinions last term, Ruth Bader Ginsburg, Stephen Breyer and David Souter each went out of his or her way to question the use of lawsuits to challenge corporate wrongdoing — a strategy championed by progressive groups like Public Citizen but routinely denounced by conservatives as “regulation by litigation.” Conrad [from the USCOC] reeled off some of her favorite moments: “Justice Ginsburg talked about how ‘private-securities fraud actions, if not adequately contained, can be employed abusively.’ Justice Breyer had a wonderful quote about how Congress was trying to ‘weed out unmeritorious securities lawsuits.’ Justice Souter talked about how the threat of litigation ‘will push cost-conscious defendants to settle.’ ”

Sotomayor’s question above came in questioning for Citizens United v. FEC, the outcome of which depends on whether campaign finance law steps on the First Amendment rights of corporations. The Roberts court is quickly getting a reputation for narrow-bore decisions that don’t upset the apple cart too much, and liberals are strategizing around the best ways to lose there.  Meanwhile, the Obama administration has gotten off to a slow start with judicial appointments; in the New Yorker, Jeffrey Toobin suggests that it will be long time before the Republican judiciary faces any challenge in numbers, let alone in ideology. But if pragmatic, non-ideological judges like Sotomayor can smuggle in a healthy skepticism for corporate personhood, I’ll suspend my disappointment for a little while longer.

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