Citizens United Litmus Test for the Supreme Court

October 5th, 2015

To amend the Constitution to reverse the Citizens United Decision will take 2/3 of the House and Senate and 3/4 of the states to ratify it. This ill-fated Amendment has no chance. But to appoint a single Justice, and potentially sway the balance of the Supreme Court, takes only 51 votes in the Senate. The latter approach is much easier. Democratic candidate Bernie Sanders has imposed a litmus test, promising to only appoint Justices who vow to overturn Citizens United.

Sanders offered this promise:

“My nominees to the U.S. Supreme Court will in fact, have a litmus test and that test will be that they will have to tell the American people that their first order of business on the Supreme Court will be to overturn Citizens United.”

I’m glad Sanders thinks Justices can overturn cases whenever they wish, as an “order of business.” Democratic candidate Hillary Clinton offered a less direct, but equally apparent litmus test:

“I will do everything I can do to appoint Supreme Court justices who will protect the right to vote and not the right of billionaires to buy elections,”

The irony of Clinton opposing a case that protected the right of a group to make a movie critical of her is too rich.

The Legal Ethics Forum comments on the appropriateness of such a litmus test:

While ideological screening of Supreme Court nominees by Presidents is the norm and privately administered litmus tests probably not uncommon, Senator Sanders goes one step further. He would require that nominees publically commit to case outcomes. Presumably, nominees would “tell the American people” about their specific commitments at a press conference or other public event, or at least in a signed statement made available to the press.

Sitting judges in jurisdictions that have adopted Rule 2.10(B) of the ABA Model Code of Judicial Conduct may have difficulty making the commitment required by Sanders. Rule 2.10(B) prohibits a judge from making pledges, promises, or commitments inconsistent with judicial impartiality in connection with cases, controversies, or issues likely to come before the court. But President Sanders could easily select a judge from a jurisdiction that has not incorporated Rule 2.10(B) into its judicial code or nominate a lawyer employed outside of the judiciary. And that nominee would be under no legal or ethical duty to refrain from making commitments on any number of issues, controversies, and cases. There is no code of judicial conduct applicable to Supreme Court Justices much less a code applicable to nominees for that office.

Of course, once on the Court the new Justice would be subject to the federal disqualification statute which requires recusal from cases in which a judge’s impartiality might reasonably be questioned. But this should not be much of a roadblock since Supreme Court Justices decide their own recusal motions.


This may be the first time a candidate has openly admitted to a litmus test. The notion of a litmus test came up during the 2012 VP debate between Paul Ryan and Joe Biden, and Biden vehemently rejected it.:

MS. RADDATZ: I want to go back to the abortion question here. If the Romney-Ryan ticket is elected, should those who believe that abortion should remain legal be worried?

REP. RYAN: We don’t think that unelected judges should make this decision; that people, through their elected representatives and reaching a consensus in society through the democratic process, should make this determination.

VICE PRESIDENT BIDEN: The court — the next president will get one or two Supreme Court nominees. That’s how close Roe v. Wade is.

Just ask yourself: With Robert Bork being the chief adviser on the court for — for Mr. Romney, who do you think he’s likely to appoint? Do you think he’s likely to appoint someone like Scalia or someone else on the court, far right, that would outlaw Planned — excuse me — outlaw abortion? I suspect that would happen.

I guarantee you that will not happen. We picked two people. We picked people who are open-minded. They’ve been good justices. So keep an eye on the Supreme Court —

REP. RYAN: Was there a litmus test on them?

VICE PRESIDENT BIDEN: There was no litmus test. We picked people who had an open mind, did not come with an agenda.

Disclosure: I have advised the Rand Paul campaign.