In a by-now familiar applause line, Bernie Sanders told Democrats gathered at the Democratic National Convention last week that the Supreme Court’s 2010 Citizens United v. FEC ruling is “one of the worst Supreme Court decisions in the history of our country.” And this is not an instance where Sanders conflicts with the conventional wisdom of the party establishment either. Not only Senator Elizabeth Warren but Democratic presidential nominee Hillary Clinton have consistently railed against the case as a symbol of the corporate takeover of democracy, and so have countless grassroots activists.
All this makes sense given the extent to which wealthy interests have been permitted to dominate American politics and policy. After all, big money has the potential to disrupt virtually every aspect of the progressive agenda, from environmental regulations to the minimum wage and health care. But the left’s fixation on Citizens United overlooks many Roberts Court decisions that were as bad or even worse. In fact, Citizens United arguably does not rank in the top five rulings handed down during the Roberts era.
So what were the five worst Roberts Court rulings? This list relies on two criteria. First, how plausible was the legal argument? And second, how negative was the policy impact of the decision? By these measures, Citizens United doesn’t quite qualify as the worst work of the Roberts Court.
Let’s take the first criterion, plausibility. On this score, the First Amendment questions at the heart of campaign financing are genuinely difficult. Indeed, on the very narrow question presented by the case—whether the federal government could suppress the broadcast of an anti-Hillary Clinton movie—Citizens United was arguably correct to answer “no.” What makes the decision a bad one is that the Court went far beyond what was necessary to decide that issue. Nevertheless, the constitutional arguments made by the Court had more basis in text and precedent than the Roberts Court’s five absolutely worst decisions.
On the question of the ruling’s impact, the actual fallout from Citizens United has probably been overrated. Politicians such as Sanders and Clinton can justifiably use that decision as a synecdoche for all of the restrictions the Court has placed on the government’s ability to regulate campaign financing. But the more important campaign finance decision remains the 1976 case Buckley v. Valeo. There’s plenty wrong with Citizens United, as I have argued. But the five absolutely worst Roberts Court decisions are these, in descending order of indefensibility:
1. Shelby County v. Holder. The Roberts Court’s evisceration of the most important civil-rights legislation passed since Reconstruction was its lowest moment. The impact of the decision to reverse a key part of the Voting Rights Act is anti-democratic, allowing numerous illegal voter-suppression schemes to go into effect, and making it much more difficult to stop them. But what makes Shelby County especially egregious is its threadbare legal reasoning, which can’t even be called “constitutional law.” The Constitution unambiguously gives Congress the power to enforce the 15th Amendment. The “equal sovereignty of the states” doctrine that the chief justice used to trump Congress’s explicit powers is a Roberts invention, and he has yet to identify any constitutional basis or Supreme Court precedent for it. Even setting aside his failure to base it on the text of the Constitution, Roberts’s argument—that Congress once had the relevant power but no longer does because the statute was too effective at protecting the rights it was intended to—defies logic. As Justice Ruth Bader Ginsburg noted in a dissent that gets the better of the Roberts majority opinion on every point, this argument makes as much sense as “throwing away your umbrella in a rainstorm because you are not getting wet.”
2. NFIB v. Sebelius. This case is generally seen as a liberal triumph because Chief Justice Roberts ultimately decided not to rule Barack Obama’s signature domestic policy achievement unconstitutional. But its Medicaid expansion holding might actually belong at the top of list. In terms of its policy impact, it would be hard to identify a worse decision in the history of the Supreme Court. Thousands of people a year will literally die because Roberts re-wrote the Medicaid expansion of the Affordable Care Act to make it much easier for states to opt out. According to Roberts, Congress could offer money to the states and place conditions on giving the money to expand Medicaid, but it could not withdraw existing Medicaid funding if states declined it. As a legal argument, it’s not quite as bad as the one in Shelby County. It’s imaginable that federal spending power might stray so far afield from a law as to unconstitutionally coerce the states—though it’s hard to picture any Congress passing such a law. As applied to this case, though, it’s quite absurd. If Congress had simply repealed the Medicaid Act of 1965 (which had been modified and expanded many times) in 2010, that would have been plainly constitutional. If Congress had repealed Medicaid I, passed the new Medicaid expansion, and made accepting federal money contingent on accepting the ACA’s conditions, this would be constitutional. So what sense does it make to say that Congress can’t make all existing Medicaid subsidies contingent on accepting the new conditions? It doesn’t.
Some people will object that this case shouldn’t make the list because two Justices nominated by Democrats—Stephen Breyer and Elena Kagan—joined the majority on this question. But it’s almost certain that these votes were strategic. It’s enormously unlikely that either Kagan (who ruthlessly attacked the Medicaid expansion argument during oral arguments) or Breyer (who has arguably the broadest conception of federal power of any justice in Supreme Court history) would have provided the fifth vote for it. But even if they had … well, they would have been dead wrong.
3. Connick v. Thompson. This case involved an almost-certainly innocent man who spent 18 years in prison largely because the state illegally suppressed exculpatory evidence. According to a 5–4 decision written by Justice Clarence Thomas, however, nobody in the prosecutor’s office could be held accountable for this egregious, willful rights violation. The impact of this case—making it more likely that innocent people will be railroaded into prison—is self-evidently terrible. And legally, it’s worth noting that the Supreme Court was not enforcing a constitutional or statutory requirement—this extreme level of prosecutorial immunity is a judicially created standard that the Court is free to modify or abandon at any time. It certainly should have in this case.
4. AT&T Mobility v. Concepcion. In this case, the Court held (in an opinion written by the late Justice Antonin Scalia) that federal law preempted California’s limits on forced-arbitration agreements. This decision makes it much harder for consumers to get effective remedies when companies rip them off. If the text of Federal Arbitration Act did, in fact, explicitly prevent California’s regulations, that wouldn’t be the Court’s fault—but it doesn’t. If you’re in the mood for dark comedy, contrast Scalia reading nonexistent policy requirements into federal arbitration law here with the hyper-literal reading of the law he tried to use to strip health insurance from millions of people in King v. Burwell. For a similarly bad anti-consumer decision, see American Express v. Italian Colors.
5. Arizona Free Enterprise Club's Freedom Club PAC v. Bennett. I actually think that this, not Citizens United, is the very worst of the Roberts Court’s campaign-finance decisions. The Court struck down an Arizona law that gave matching funds to candidates based on the money raised by their opponents. Citizens United at least presents a real First Amendment issue, because the government was accused of setting out to restrict speech. Arizona’s public funding for candidates, conversely, did no such thing—it expanded speech rather than suppressing it. Since public financing is the most viable means legislatures have to counteract the domination of politics by the wealthy, making it more difficult for states to do so is a big deal, and the arguments that Arizona’s provision of matching funds violates the First Amendment were nonsensical. As Justice Kagan observed in dissent, “Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury.”
A few dishonorable mentions that didn’t make this list include District of Columbia v. Heller, which held that bans on the possession of handguns for self-defense violated the Second Amendment. While most liberals abhor the ruling’s restrictions on the ability of the state to enact gun control measures, the Roberts Court’s legal argument in Heller isn’t ridiculous, and at least so far, its impact has been modest.
Other Roberts Court misfires include the decision allowing employers to refuse legally mandated contraceptive coverage to their employees in Hobby Lobby v. Burwell; a series of decisions that restricted employees’ ability to bring anti-discrimination lawsuits; a ruling that upheld arbitrary strip searches of people arrested for minor, nonviolent offenses; and the Court’s creation in Clapper v. Amnesty International of a First Amendment catch-22.
As Sanders observed in his DNC speech, the implications of who sits on the Supreme Court go well beyond a few high-profile issues like abortion. And with one vacant seat and several justices on the verge of leaving the Court, the Court is about to move substantially in one direction or another. If Hillary Clinton and a Democratic Senate are able to replace Scalia, the Court will swing in a more liberal direction favorable to environmental, reproductive health, criminal justice, consumer protection and other progressive priorities. If Donald Trump wins and is able to replace the Scalia seat and at least one of Breyer, Ginsburg, or Kennedy, the Court will continue down the disastrous path set by Chief Justice John Roberts. Citizens United and the Supreme Court’s other campaign-finance rulings will be important parts of the constitutional agenda. But so will a long list of other very important issues.