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This column deserves an award of some kind
February 1, 2010 | 3 Comments
Once upon a time E.J. Dionne was a fairly reasonable voice of the left-wing intelligentsia. He was touted as a reasonably moderate left-winger who offered generous criticisms of both parties. Over the years he has deteriorated into just another partisan hack. But his column today is one of the most breathtaking example of dishonesty and foaming at the mouth rage that I have ever witnessed.
The nation owes a substantial debt to Justice Samuel Alito for his display of unhappiness over President Obama’s criticisms of the Supreme Court’s recent legislation — excuse me, decision — opening our electoral system to a new torrent of corporate money.
And right away we establish the mood. The Supreme Court didn’t render a decision based on the constitutionality of the act before it; no, rather it “legislated” its will upon the people by opening up the torrents of corporate (Boo! Hiss!) money. So now I await Dionne’s reasoned take on why the Court’s decision was wrong.
Alito’s inability to restrain himself during the State of the Union address brought to wide attention a truth that too many have tried to ignore: The Supreme Court is now dominated by a highly politicized conservative majority intent on working its will, even if that means ignoring precedents and the wishes of the elected branches of government.
So Justice Alito’s honest reaction – one which he had no idea was being filmed – is a signal that the Court is “dominated by a highly politicized conservative majority.” Anthony Kennedy is just as surprised as the rest of us. Dionne seems offended by the notion that the Court – GASP! – ignored the wishes of the elected branch of governments. I was unaware that the Supreme Court’s primary consideration in considering the constitutional merits of a case was whether or not the other branches wished something to be so. I was under the evidently loopy notion that the Court’s primary concern was whether or not a piece of legislation was actually in accord with the written text of the Constitution. Silly me. How dare the Supreme Court overturn an act of Congress! This is outrageous. Judicial review? Fie! Fie upon the concept, even if it has been an accepted tenet of our country since the Founding. (And yes, I have myself objected to certain conceptions of judicial review, but only the idea that the Court is the sole arbiter of the Constitution. It clearly is an arbiter, just not the only one.) Anyway, I look forward to Dionne’s reasoned analysis of why the Court was wrong.
Obama called the court on this, and Alito shook his head and apparently mouthed “not true.” His was the honest reaction of a judicial activist who believes he has the obligation to impose his version of right reason on the rest of us.
This is actually just a repeat of the paragraph above. This is called “filler.” I do admire Dionne’s determination to stick the label “activist” upon Supreme Court decision-making. As we all know, Dionne has been a staunch critic of “judicial activism,” right? I’m sure if I looked through the archives, I’d see scathing attacks upon the Supreme Court’s decisions during the Bush years on affording rights to enemy combatants, as well as other decisions that struck down state anti-sodomy laws and death penalty statutes.
Still waiting for that clear-headed analysis of what the Court got wrong.
The controversy also exposed the impressive capacity of the conservative judicial revolutionaries to live by double standards without apology.
The movement’s legal theorists and politicians have spent more than four decades attacking alleged judicial abuses by liberals, cheering on the presidents who joined them in their assaults. But now, they are terribly offended that Obama has straightforwardly challenged the handiwork of their judicial comrades.
In almost all cases, conservative legal theorists have attacked Supreme Court decisions not because they overturned the majority’s will, but because these decisions were not grounded in anything approaching a reasonable interpretation of the Constitution. Personally, I don’t like the term judicial activism, precisely because it implies that the problem with Supreme Court decisions is their anti-majoritarianism, but that is not what has gone wrong with most major Supreme Court decisions of the past century.
There is ample precedent for Obama’s firm but respectful rebuke of the court. I know of no one on the right who protested when President Reagan, in a 1983 article in the Human Life Review, took on the Supreme Court’s Roe v. Wade decision of 10 years earlier.
I’d like to give Dionne some benefit of the doubt and not assume he is willfully obfuscating here, so I’ll just posit that he isn’t smart enough to pick up on the crucial difference. Ronald Reagan did not chide the Supreme Court during a State of the Union address. Sure previous presidents have criticized Court decisions, but none did so in the manner that Obama did last week.
Reagan had every right to say what he did. But why do conservatives deny the same right to Obama? Alternatively, why do they think it’s persuasive to argue, as Georgetown Law professor Randy Barnett did in The Wall Street Journal, that it’s fine for a president to take issue with the court, except in a State of the Union speech? Isn’t it more honorable to criticize the justices to their faces? Are these jurists so sensitive that they can’t take it? Do they expect everyone to submit quietly to whatever they do?
I actually don’t think that Obama’s critiquing the Court was the greatest crime he committed. Lying about what impact the decision will have – twice – was the much more egregious act. And certainly the Court is not above criticism. However, unlike Congress, the Court does not have the ability to respond to anything said about them during a State of the Union address. They are supposed to be non-partisan observers, unable to hint at any kind of disagreement with what is being said, and if they do -like Alito – they are chastised for it. Also, it is one thing to criticize others to their face when they have an opportunity to respond, quite another when they are a captive audience and have to just sit there. Surely Dionne can’t be this completely obtuse about the distincion.
Still waiting to hear that reasoned critique of the Court’s decision.
As for the specifics of Obama’s indictment, Alito’s defenders have said the president was wrong to say that the court’s decision on corporate political spending had reversed “a century of law” and also opened “the floodgates for special interests — including foreign corporations.”
But Obama was not simply referring to court precedents but also to the 1907 Tillman Act, which banned corporate money in electoral campaigns. The court’s recent ruling undermined that policy. Defenders of the decision also say it did not invalidate the existing legal ban on foreign political activity. What they don’t acknowledge is that the ruling opens a loophole for domestic corporations under foreign control to make unlimited campaign expenditures.
Three paragraphs from the end and Dionne finally manages to get to some substantive analysis. Unfortunately for E.J. Dionne, well, he’s E.J. Dionne and thus has absolutely no idea what he’s talking about. Linda Greenhouse points out:
The law that Congress enacted in the populist days of the 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 more complicated statute that barred corporations and unions from spending money directly from their treasuries — as opposed to their political action committees — on television advertising to urge a vote for or against a federal candidate in the period immediately before the election. It is true, though, that the majority wrote so broadly about corporate free speech rights as to call into question other limitations as well — although not necessarily the existing ban on direct contributions.
Dionne is getting worked up about the possibility that this decision will lead to other laws and prohibitions being struck down, but that doesn’t address whether this specific decision accorded with the plain meaning of the First Amendment, nor if the regulations that still stand are in fact constitutional. Dionne rests his objection mainly on some generic objection to the idea of corporations getting involved in political fund-raising and advertising, but this is just a populist bogeyman. The mere mention of the word “corporation” is supposed to drive us all in a tizzy, motivating all good citizens to grab their pitchforks, head on over to East Capitol Steeet, and demand I say demand retribution. But at no point are we asked to consider that, you know, maybe the Court was right.
Alito did not like the president making an issue of the court’s truly radical intervention in politics. I disagree with Alito on the law and the policy, but I have no problem with his personal expression of displeasure.
On the contrary, I salute him because his candid response brought home to the country how high the stakes are in the battle over the conservative activism of Chief Justice John Roberts’ court.
A very weak ending that merely repeats the thesis. This reminds me of one of my college English papers that has to be at least five pages but I struggled to get to three, so I just repeated the same thing in different fashion to pad it out so that my paper just barely got to a fifth page, with two sentences on the top of page five – and that’s only because I padded out the first page just enough to move everything down.
This entire column could have been written in two or three sentences. “I don’t like corporations. Corporations shouldn’t have influence on politics whatsoever. I don’t like conservatives either. Samuel Alito is a conservative and he likes corporations and therefore he’s the devil.” Okay, it’s four, but it still would have been a lot more interesting (and truly indicative of what Dionne thinks) than the end product.
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Sadly, Dionne is probably very proud of the column and thinks he was being really clever by throwing the term judicial activism back at conservatives. He is emblematic of the problem with newspapers and journalism in general. Most with space in a paper or time in a newscast weigh in on subjects of which they have no real knowledge. Somehow, any one with a journalism degree is deemed an expert on every subject. On medicine, bio-ethics, national budgets, military affairs, “climate change” nonsense, and hundreds of other subjects reporters and columnists speak out and help form public opinion based on their false expertise.
“However, unlike Congress, the Court does not have the ability to respond to anything said about them during a State of the Union address.”
I like the idea: give the Court 15 televised minutes after the SOTU speech. It could be followed by the Chairman of the Joint Chiefs’ Response.
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