Supreme Court: Court Receives Appropriate Critique at the State of the Union; Unelected Justices Must Be Judicious in Striking Down Legislation

President Barack Obama delivered a mild critique of the Supreme Court’s decision in Citizens United v. Federal Election Commission (08-205) in his State of the Union address.

With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections.  (Applause.)  I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.  (Applause.)  They should be decided by the American people.  And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.

While there has been some criticism of the President’s words, I think that he was appropriate in stating his disagreement. The Supreme Court, as an institution, is a branch of the United States Government, which itself exists with the consent of the governed. The Justices had acquired unjustified God-like status (much of the esteem for the Court went away with Bush v. Gore), but they work for the taxpayer. As such, they should be critically analyzed just like the Executive  and Legislative branches.

In Citizens United, the Court’s majority went down a questionable path once they decided to equate corporations (legal fictions) with human beings with regard to the application of the First Amendment. Given that ownership of the corporations in the United States is not restricted to United States citizens, the decision of the Court could have unintended consequences.

This situation brings the Court’s practice of striking down legislation on Constitutional grounds into focus. The Justices are unelected and serve for life. When they declare a law unconstitutional, there is no avenue for recourse except a unwieldy Constitutional Amendment process. For these reasons, the Justices must carefully use Constitutional strikes against legislation.

There should be a way of determining the propriety of Constitutional strikes. Where a legislation clearly goes against a Constitutional provision, the Court acts at its strongest. The Court is at its weakest when it makes decisions that set broad policy beyond relatively isolated cases.

Broad policy is for the Congress, where the citizens can vote to decide whether to keep the officials in office or decide to place another person in the seat. Where broad policy issues are involved, I think the Court should narrowly isolate Constitutional issues, giving heavy weight towards deferring to Congress to allow them an opportunity to make fixes to problems the Court had identified. If Congress does not act to address the identified problem, then the Court could think that the institution had decided to allow the law to be struck down.

This method of reasoning when to apply Constitutional strikes cannot apply in cases like Citizens United where Justices preemptively decided that the case will be decided on Constitutional grounds, even where there are legitimate policy issues involved.

If the Court makes policy decisions, covered up with a Constitutional strike, then the Court has to accept that it will be criticized in the public sphere and not only in rarefied law journals.