Instead of the "umpire" with "no agenda" that he disingenuously promised the Senate when his nomination by Bush II was under consideration, C.J. Roberts has delivered just the opposite: an historically extreme judicial supremacist legislator in robes. When testifying, Roberts clarified: "Umpires don't make the rules, they apply them." But a former schoolmate of Roberts, now a doctor, suggests Roberts' precocious facility with inventing new rules: "He could take an argument that was borderline absurd and argue for it so well that you were almost at the point of having to accept his stance even though it was intuitively obvious that it was absurd." Such plausible-sounding absurdity is precisely what Roberts has delivered when trumping the majority will by reversing the Voting Rights Act in Shelby County (2013), overturning effective public funding of elections enacted by popular referendum in Arizona Free Enterprise Club (2011), and now facilitating systemic political corruption in McCutcheon (2014). As Ari Berman points out in the Nation, vote suppression, as in Shelby County, and buying elections, "are not unrelated issues" for purposes of building plutocracy.
Professor Gene Nichol describes Roberts' "grotesque hypocrisy": "Never has there been so wide a chasm between the jurist calculatingly advertised and the one subsequently, knowingly, delivered." Roberts was appointed by the very President whose election he helped to steal in 2000. See Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (2008) 175. He dissembled his way onto the Court by pretending to be an "umpire" rather than a judicial supremacist. And he has now committed serial acts of "treason to the constitution" by usurping legislative power in the service of plutocracy. See Cohens v Virginia , 19 U.S. at 387 (1821) (C.J. Marshall). Though he has never won an election, this illegitimate stealth justice appointed by an unelected president presumes to legislate for the country in violation of constitutional separation of powers. How far must Roberts' treason to the Constitution go before it will be punished?
Roberts misses the irony in his statement that "those who govern should be the last people to help decide who should govern." He aims that platitude at Congress, under the pretense that Congress actually still governs. But Congress does not govern under the Supreme Court's illegitimate judicial supremacy. The Court governs like a colonial privy council, deleting any laws that displease their plutocratic lords. Congress is paid by plutocrats to leave the Court in charge of corrupting its elections. Polls consistently show that Americans think there is no legitimate Congress, routinely ranking its consent from the governed below that of King George III. So it is the Roberts 5 who "help decide who should govern," but should be the last people to do so.
Notwithstanding the renewed calls for a futile and even counterproductive constitutional amendment -- such as the ill-considered proposal of Bernie Sanders -- that are predictably re-issued in response to cases like McCutcheon, the actual opinions in the case again demonstrate that the problem is not with the Constitution. Roberts has great difficulty tying his decision to any constitutional text or an "originalist" interpretation of it. The Court's illegitimate exercise of judicial supremacy has proven once again that, as Article I, Sections 4 & 5 of the Constitution provide, the Court should have no role whatsoever in inventing new election law contrary to that which the people themselves support. But these ritual calls blaming the Constitution do divert attention away from the abundant proof that the problem lies, not with the Constitution, but squarely with a Supreme Court majority that flagrantly violates the Constitution's separation of powers.
The lack of effective public response -- partly due to those diversionary non-strategic calls by politicians and their professional activist supporters that reform "requires a constitutional amendment" -- has only encouraged the Court to continue its project. The Roberts 5 both understand and practice the lesson that F.D. Roosevelt taught in his successful battle with a similar judicial supremacist Court. He denounced those who pursued the "strategy to suggest the time consuming process of amendment in order to kill off by delay the legislation demanded" by the people. FDR explained to the country:
"Even if an amendment were passed, and even if in the years to come it were to be ratified, its meaning would depend upon the kind of Justices who would be sitting on the Supreme Court bench. An amendment, like the rest of the Constitution, is what the Justices say it is rather than what its framers or you might hope it is."
By creating a systemically corrupt government in the firm control of plutocrats, the Court has made it unlikely that a future majority of justices will be other than the kind of plutocrats that now control the Court.
Because the public response has been so ineffective, misguided and counterproductive in ignoring the lesson of FDR and all previous leaders who have confronted this recurring problem in American history, the Court can be fully expected to move directly to its next campaign finance target. Roberts identified that target for those who understand his legalese: "Notwithstanding the robust debate, we see no need in this case to revisit Buckley's distinction between contributions and expenditures." Because Buckley and its progeny left expenditures of party and candidate funds completely unregulated, that pretty much translates as inviting the next case to seek elimination of the "base" limits on contributions that were left standing in McCutcheon. The Court would then likely go on to strike the final blow to campaign finance by overturning the remaining restrictions on "soft money" contributions to parties . Just because they can, not because it will really make much difference to the grip of plutocrats on the former republic.
Justice Thomas spelled out where this all eventually leads in his concurrence. He argues for reversing Buckley and its principle of prophylactic limits on campaign contributions altogether. But first, the next case on the Court's docket raising campaign finance issues could permit corporate donations directly to candidates, which is an issue the Court declined to take up in U.S. v. Danielczyk just after it chose to hear McCutcheon instead, as the more logical next step in its step-by-step demolition of democracy. This state case now pending decision on certiorari would raise the possibility for revisiting the still-viable 11th Amendment strategy previously muffed by both the Montana attorney general and professional activists.
Professor Richard Hasen worries that "many more campaign laws could fall in the near future." He accurately discerns that Roberts' McCutcheon "opinion promises more bad things to come for money in politics, and soon." But what happens in the future is of only formal concern -- the damage has long since been done. As Yale's Sam Kleiner more relevantly observed in the New Republic: "The [McCutcheon] decision may not change the landscape of the 2014 elections because donors can already dump huge sums of money into elections but it does show how little the Roberts Court understands about how our campaign finance system actually works. Thanks to the Roberts Court, we no longer have a working campaign finance system."
And the United States will no longer have a working democracy until the People unite behind an effective strategy to get the Roberts 5 out of the sordid business of corrupting state and federal elections. The only realistic way to do this is by forcing Congress to completely strip the Court's jurisdiction over federal elections -- with real teeth enforcing specific Article III "good Behaviour" standards against any Roberts 5 resistance -- and thereby revive the numerous state and federal laws the Court has illegitimately nullified in bold violation of the separation of powers.
Meanwhile the states need to enact new creative legislation not yet rejected by the Roberts 5 -- such as barring or taxing out of state contributions, or establishing alternative no-buy-zone primaries to access one general election ballot line. Such creative state initiatives must all be vigorously defended by the forceful and unified assertion of the 11th Amendment sovereign immunity defense from Supreme Court interference in the sovereign integrity of state government.
An earlier version of this article was published by Counterpunch
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