Earlier today, Ian Millhiser wrote an article for ThinkProgress entitled, “Why Bernie Sanders’ Misinformed Supreme Court Tweet Matters.” As a Bernie supporter, and a student of the law, the title peaked my interest. Millhiser copies a Tweet written by the Bernie Sanders campaign: “Any Supreme Court nominee of mine will make overturning Citizens United one of their first decisions.” Then, the author and Yale Law and Policy Review contributor proceeded to explain how dumb-dumb Bernie Sanders needs to “educate himself about how the Supreme Court functions if he becomes the Democratic nominee.”
“The problem with this tweet, however, is that it betrays a serious misunderstanding of how the Supreme Court operates. Unlike a legislature, which is free to take up or ignore particular issues at their leisure, court cases must clear numerous procedural hoops before they are decided, and this is doubly true for the Supreme Court of the United States. In reality, it would be nearly impossible for Sanders’s nominee to ensure that any particular case was “one of their first decisions.””
First, to betray a serious misunderstanding would be to seriously understand something. Second, as a member of the legislative branch of government for the last 26 years, I’m sure Sanders understands the difference between how a legislature operates and the Supreme Court operates. While it would be nearly impossible for Sanders’ nominee to ensure that any particular case was “one of their first decisions,” it would also be nearly impossible to look at other references Sanders has made to this position and forgo an understanding that the word decisions ought to have read “priorities.”
As President, Sanders can nominate an Attorney General who will work to overturn Citizens United. While it might take 2 years to see a brand new case in front of the Supreme Court, one that begins in federal District Court, there are already plenty of cases at the appellate level that address the same issue of Citizens United and have yet to see the Supreme Court grant or deny certiorari. As the author of the original article should know, only four justices need to wish to review the case in order for cert to be granted. As such, a case that could be scheduled up for review first thing in January could be a potential way to undermine or overturn Citizens United.
Third, as Senator Sanders has actually been in the Senate to vote on the nominations of two of the sitting Justices, one would assume Sanders actually knows something about the nomination process. Further, Sanders has been involved in the nomination process of many more federal judges than just the Supreme Court.
Fourth, Twitter. Millhiser comes to conclude that “[t]he fact that no one in his campaign caught a fairly rudimentary error in his Citizens United tweet, however, does suggest that he is currently not making the judiciary a high priority. It also suggests that his priorities may not align with the actual leverage points that will be available to him if he becomes president.” This is the reason that the Tweet matters. The other option that it suggests is that 20 hours ago, some tired campaign staffer—maybe even Bernie himself—was posting a tweet because it was the anniversary of Citizens United, and that person absent-mindedly wrote decisions instead of priorities. Who knows? Maybe Bernie Sanders just doesn’t know about how the Supreme Court works.