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View Diary: How John Roberts orchestrated the Citizens United decision (220 comments)

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  •  It's Stuart's Fault (3+ / 0-)
    The trio made Stewart—and thus the government—take an absurd position: that the government might have the right to criminalize the publication of a five-hundred-page book because

    The trio of Supremes didn't make Steward do anything except answer their questions. Stewart's the one who got the answer wrong, failing to distinguish between TV ads and a 500 page book. Even though the law being argued does make that distinction. It's Stewart's fault he got the question wrong. It's Stewart's fault he wasn't prepared for the questions with answers that made the distinction clear.

    Yes, Roberts and Alito were seeking Stewart's wrong answer. Yes, they're the ones whose whole careers led to that line of questioning, for which they were selected by Bush/Cheney and their corporate sponsors to sit on the Court. Yes those "justices" failed to point out the distinction Stewart failed to point out when they wrote their opinions. Of course they are heavily to blame.

    But the system is designed to put Stewart in front of the "justices" attempts to manufacture a preconceived notion into a binding opinion. Stewart's job is to get the answer right; justices are allowed to get the questions wrong. It's inherent in the format, to give the solicitor the power to thwart a line of questioning by the justices.

    Stewart failed. It's his fault.

    Of course, the system also is at fault. Apart from Bush/Cheney Inc, the Senate is to blame for confirming those "justices", despite ample evidence of their activist agenda. The system, though, makes it nearly impossible to remove those "justices" for, among other reasons, demonstrably lying to their confirmation hearings. The system makes it very rare for a case like Citizens United to be reheard once actual justice and competence are restored to hear it, but more likely that corrupt exploiters will get Citizens United heard in a rehearing of settled law that it's designed to overturn. The system allows Stewart's bungling to sacrifice our entire democratic republic.

    Ultimately our system protects judges far too much from the consequences of their failures. The rate at which a judges opinions are overturned by higher courts does not force bad judges out. There's no real peer review among judges or the legal academic community to rate judges and remove the worst ones. The more powerful the judge the less chance any politician will pursue impeachment even in the worst cases of corruption (cough Clarence Thomas cough). Hell, we can't even get the most powerful judges to retire once they're a million years old, while partisan judges can retire on a pretext when it's convenient for them to be replaced by a fellow partisan president and Senate.

    Until our system is changed to make judges accountable for their decisions, and smash corruption and collusion among branches to stack the courts for agendas narrow or broad, we will have unnacoutable corruption and collusion. Unfortunately, Citizens United makes fixing the system even harder than it was when we already had centuries of proof that fixing was necessary.

    "When the going gets weird, the weird turn pro." - HST

    by DocGonzo on Wed May 16, 2012 at 05:04:23 AM PDT

    •  Do you think it would have changed the result? (5+ / 0-)

      Seems to me like the justices already had their opinion before the case was even argued. He made a mistake, but the result was not his fault if the justices already knew what they'd rule.

      •  I think they all have their (4+ / 0-)

        opinions before any case is argued and they reverse engineer their opinions to fit their viewpoints.

        [they have their clerks do it].

        In this case CU was dead* and Roberts plucked it out of the ether and put it before the court.

        * No application for cert was made by CU after they lost in the lower court.

        I had this happen to me in Circuit Court where a new judge made a ruling and then issued an order on an issue that wasn't before it.  The judge had to remove himself after I brought it to the grievance board.  I suppose he could have been impeached. It was all very fishy.

    •  I disagree strongly. (0+ / 0-)

      First of all, Stewart was right.  The individual law didn't allow for regulation of a book, but the argument the government was using to support the law certainly did.  If the government could constrain corporate speech in one medium, it could do so in any medium.

      It's a distinction without a difference.

      What's with blaming the government lawyer all of a sudden?  I heard the same thing with the PPACA argument.  It's like some people can't believe they'd lose a case on the constitutional merits of it...

      •  You're Wrong (1+ / 0-)
        Recommended by:
        wsexson

        First of all, Stewart gave the wrong answer:

        Since McCain-Feingold forbade the broadcast of “electronic communications” shortly before elections, this was a case about movies and television commercials.

        Alito: "Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?"
        "providing the same thing in a book? Would the Constitution permit the restriction of all those as well?"

        Stewart: “Those could have been applied to additional media as well.”

        That was the wrong answer. The right answer was "This law and the case against it don't raise the question you asked, since Congress did draw that line. The Constitution does not prohibit drawing that line."

        Stewart's answer validated Alito's speculative question that went beyond the scope of the case. He gave Alito the wider scope within which Alito (and Roberts, and the rest of the hack "justices") could base an opinion on matters outside the scope of this law and this case.

        That is basic legal strategy. Stewart didn't stick to the matter in which he had a winning argument, the matter the case was about. He let Alito's activism define the frame, instead of maintaining the frame that the entire Supreme Court agreed was the matter to be decided: the law, not some speculative other law Congress never passed.

        The government's power to violate the First Amendment protection of "the press" derives from extenuating circumstances. That power is stronger when infringing TV, especially commercials, than when infringing 500 page books. There is the distinction that makes all the difference, because it's a substantial distinction.

        So I'm blaming the government lawyer, because they answered the question wrong, and lost the case. And because they didn't stick to whether the government has the power to regulate the content of just TV ads, they gave the court the precedent its fascists wanted. A specific scenario that someone with the responsibilities that job entails should have been prepared to easily avoid.

        That's the reality. That's how I see it, that's how this diarist sees it, that's how the legal commenter we're quoting from sees it. It's not "blame the government all of a sudden".

        The real question is why you're so willing to excuse them from doing it, and blame me and those writers as if we're arbitrary. Instead of disagreeing whether there's a better answer that could have won, all you can imagine is that Citizens United is actually the way the Constitution protects corporations.

        "When the going gets weird, the weird turn pro." - HST

        by DocGonzo on Wed May 16, 2012 at 04:08:12 PM PDT

        [ Parent ]

        •  You think Alito would have let him dodge... (0+ / 0-)

          ...the question?

          I strongly doubt that.

          Additionally:

          The government's power to violate the First Amendment protection of "the press" derives from extenuating circumstances. That power is stronger when infringing TV, especially commercials, than when infringing 500 page books. There is the distinction that makes all the difference, because it's a substantial distinction.
          You think he would have gotten 5 justices with that argument?  What precisely even is the constitutional argument for that point of view?
          •  That's Not a Dodge (0+ / 0-)

            That's rejecting the question. That's what lawyers do. If Alito wanted to insist on the invalid question, a good lawyer would have exposed their agenda and really blown them. That would have made it harder for the rest of the justices to use Alito's line, or join him in concurrence.

            The Constitutional argument for the point of view that extenuating circumstances allow regulation of the press despite the First Amendment is completely obvious from the many such regulations that all depend on that POV.

            The Constitutional argument that 500 page books are different from TV ads in the government's power and the public's interest in regulating them is completely obvious from the many such regulations that all depend on that POV.

            Unless you concede those arguments by getting it wrong and saying there is no difference, the power is equally limited. Then you ignore that there are crucial barriers to creeping from TV ads to 500 page books.

            Meanwhile you ignore the race down the slippery slope to "corporations are people with the same rights as humans". That's legal malpractice, and it's primarily Stewart's fault for even accepting the question about crossing the boundary that  the law in dispute clearly respected.

            "When the going gets weird, the weird turn pro." - HST

            by DocGonzo on Fri May 18, 2012 at 04:24:03 AM PDT

            [ Parent ]

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