RBG on Republicans and Campaign Finance Law

August 22nd, 2014

Kudos to Marica Coyle, who conducted a brilliant interview with Justice Ginsburg. The mark of a great interview of a Justice is learning new stuff. And, I learned a lot of new stuff. Alas, what I learned does not help my of-late decreasing opinion of Justice Ginsburg. I recently noted that Justice Stevens has been quite quiet since his book launch faded, so RBG seems to have taken up the mantle. Many of her comments border on inappropriate, as they can be seen as direct attacks on her colleagues. Some may think this is healthy, and the Justices should be open about these types of internal deliberations. I don’t. It will take me a few posts to go through all of her comments. I’ll go in sequential order.

First, here is a Q&A concerning the Court’s reputation, and campaign finance law:

NLJ: You have said that you and your colleagues are most concerned that the Supreme Court not be viewed as a political institution. Recent polls show declining disregard for the high court and strong feelings that the justices apply their political beliefs, not the law, to the cases before them. What do you think is behind those reactions?

GINSBURG: I think it’s the spillover effect from the dismay about our dysfunctional Congress. Whatever the polls say about the court, we stand much, much higher than either of the other two branches. I think people are disillusioned with our government’s inability to work and that spills over to the court because we are part of the government.

One of the problems is that redistricting has led to safe seats for one party or the other. Still I think the biggest mistake this court made is in campaign finance, which Justice [Sandra Day] O’Connor could have saved us from. She left. Justices O’Connor, [John Paul] Stevens and [David] Souter (who supported campaign finance regulations) were Republican voters from the time they could vote and came from families that were always Republican. It should be increasingly clear how [money] is corrupting our system, and it is spreading in states that elect their judges. 

I think the first part of her answer is unobjectionable–though a good question is whether the Court should take notice of that dysfunction when interpreting the byproduct of a gridlocked, intractable Congress.

The second paragraph potentially worries me. Justice O’Connor has said as much, that she would not have voted with the Citizens United majority. But what’s the salience that O’Connor, Stevens, and Souter “were Republican voters.” Is she trying to say this is is a bipartisan issue? In truth, Souter and Stevens were consistently liberal voters, so at this point, their Republican voting status is almost immaterial (they claim the party left them–whatever). But, when read in context with the next sentence, I get worried. Is she insinuating in any way a link between Republicans and money corrupting the system. There is an abrupt jump between saying that those Justices were former Republicans, and then saying that money is corrupting the system. I can’t help but think, in her mind at least, there is some implicit connection.

Also, a point that may have been made elsewhere, recently dawned on me. The Justice sit in review of judgments from state judges, who apparently are being “corrupt[ed]” by money. Does RBG realize she is targeting the integrity of the very state judges she sits in review of? I think it is probably inappropriate for Justice O’Connor to do all the things she has done (robocalls and all), but for a sitting Justice, who sits in review of state judges, to say these things, is very disquieting. What does RBG think when she gets a cert petition from Texas, where all Justices sit for election? Is there an implicit bias that these judgments, perhaps with a corporate defendant, were the product of “corruption” from money?