Citizen’s United is a Terrible Litmus Test

It’s time to play “clueless or cynical”!

Today’s entry is a statement made yesterday by Bernie Sanders, saying that the only court case he views as a potential litmus for the SCotUS vacancy is Citizen’s United. When asked if there was any other case he would consider, he said no, just Citizen’s United.

Let’s go over why that’s a terrible answer. For starters, Citizen’s United is a good windmill to tilt at, but it’s hardly responsible for income inequality, which is what Sanders seems to be using it as proxy for. Citizen’s United held that organizations had a free speech right to spend as much money as they wanted to influence the political process, so long as that was not done in coordination with the political campaign.

If that’s your only touchstone, though, the potential solution space narrows; Hobby Lobby, for example, granted corporations a far more expansive right of personification: religious identity. Attacking Citizen’s United without also addressing cases like Hobby Lobby means corporations remain people and can thus only have their free speech rights lightly infringed. Attacking Citizen’s United without addressing the per curiam opinion in Western\American Tradition Partnership means that you’re continuing to prevent states from enforcing any of their own restrictions above the low bar of the federal level. And attacking Citizen’s United without challenging McCutcheon v FEC means that all that money will just flow directly to the campaigns.

So, while it’s a flashy position to point to, it’s not a good answer from a legal standpoint. That’s the argument that BS is just clueless, talking about something outside his broader range of expertise.

Here’s the argument that BS is full of shit. Because a progressive can not talk about SCotUS litmus tests without addressing Roe v Wade. You just fucking can’t, it’s a rule. And with Roe being pushed back over and over again over the last fifty years, it is more important than ever to make sure the change in the balance of the court reflects a willingness to support this right that has been so steadily eroded away. BS was explicitly given a “are you sure” moment to bring up Roe, and he passed. Now, either your uber-progressive revolutionary doesn’t think about Roe when he thinks about the Supreme Court, which is possible if damning, or more likely BS has decided that his base will like it better if he again dismisses a serious economic issue affecting women as a distraction from “income inequality.”

But preventing women from access to abortion is a driver of income inequality. The why is a longer post, which I’m sure you can find better stated elsewhere, but suffice it to say it imposes a real tax on young women at a time that tends to set their wage window for the rest of their lives. Abortion is a major factor in women maintaining their independence, and conservatives know this… it’s one of the reasons they’re so obsessive about the issue. We all know “pro-life” is a branding lie; if they were in favor of life, they wouldn’t be so bloodthirsty when it came to the death penalty or our foreign wars.

And that’s without even getting into the other legal trends that should guide a Supreme Court nomination.

For example! The conservative majority has been doing their damnedest to reinstate Lochner as a compelling precedent, and not one of the worst cases of SCotUS overreach in the history of the court. Lochner said, basically, that it was totally cool to make your employees sign a contract in which they ceded their labor protections; it was a major economic ruling.

Or, given the string of pro-segregation, anti-affirmative action cases since Abigail Fisher was too dumb to get into her first choice of college (or like Gratz v Bollinger), he could have spoken up in defense of Brown v the Board of Education. Segregation has known economic impacts for communities of color, and in the absence of government intervention it has de facto increased in the country.

You could talk about how Gonzalez v Raich fucked over an industry that not only provides employment to people on the bottom rung of society, but is used to keep people with chronic illnesses out of the workplace. The way in which the pro-police rulings of the last decade and a half have made it so that law enforcement actors (including DAs) face no meaningful consequence when they ruin the lives of the people who fall into their orbit. There are literally too many of those to even name.

Or what about AT&T Mobility v Concepcion? That opinion, written by Scalia himself, prevented states from regulating mandatory arbitration clauses, and helped close the courts to class action lawsuits challenging those practices. Amchem v Windsor, which demanded class action lawsuits have stricter definitions of what constitutes a class, weakening them significantly. Or let’s go all the way back and talk about Bell Atlantic v Twombly, which is the attack on class action lawsuits from which the rest of this damage derives.

But no. BS stated that Citizen’s United was his only progessive SCotUS litmus test. I don’t think Sanders is a dumb man, but if he thinks that’s an acceptable he sure as hell thinks that the rest of us are stupid.

So, clueless or cynical? What do you think?

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