Along with his fellow Republicans, Jeff Sessions spent much of the first day of Elena Kagan's confirmation hearings weirdly taking aim at the storied judicial career of Thurgood Marshall. Why? Because Marshall was an enemy of originalists, and the senators wanted to portray Kagan, who clerked for him, as cut from the same ideological cloth.
Later in the day, though, Sessions compared the Supreme Court's decision in Citizens United, which granted corporations the right to make unlimited political donations, to Brown v. Board of Education, the landmark civil-rights case that declared de jure racial segregation unconstitutional. In the Citizen's United case, he said, the court went back to the principles of the Constitution to apply equal protection of the laws.
"Is it treating people equally to say you can go to this school because of the color of your skin and you can't?" Sessions asked rhetorically. "We've now honestly concluded and fairly concluded that it violates the equal protection clause."
How is that like Citizens United? "I think this Court, when they said 'Wait a minute! If you're talking about a precedent that says the government can deny the right to publish pamphlets, then we've got get rid of this one outlier case Austin -- 100 years of precedent -- and go back to what the Constitution [says].' I don't think that's activism."
Buried in this tortured analogy is a pretty illustrative example of how amorphous originalism actually is. The decision in Brown, arguably the most famous case taken on by the legendarily activist Warren Court, was (and still is) decried by many conservatives as judicial overreach. Yet as Sherilyn Ifill points out, Chief Justice Roberts actually invoked Brown in the Citizens United ruling precisely because it eschewed precedent; “if the court never departed from precedent, ‘segregation would be legal.’”
Because Brown is one of those moments that affirms the goodness of American character, and because its fundamental rightness is taken as a given now (in a way that certainly was not true when it was decided), it’s often brought up this way, as a cover for expansive readings of the Constitution that bring about results favorable to conservative causes.
So they want to give corporations new ways to involve themselves in the political process but are bound by campaign finance laws from doing so? No worries! Just sprinkle some Brown on it.
-- Gene Demby
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