American Justice 2014. Garrett Epps

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СКАЧАТЬ reflects a world in which giving money is the equivalent of voting and discrimination among those with money to give is the equivalent of—indeed, perhaps worse than—discriminating among voters. Consider the plight of Sean McCutcheon once he had given the maximum amount. He could volunteer for a candidate, Roberts wrote, but “personal volunteering is not a realistic alternative for those who wish to support a wide variety of candidates or causes.” Beyond that, “other effective methods of supporting preferred candidates or causes without contributing money are reserved for a select few, such as entertainers capable of raising hundreds of thousands of dollars in a single evening.”

      The McCutcheons of the world, of course, are already members of a “select few.” But that, to Roberts, was not enough. It was intolerable that anyone should have more influence than a wealthy donor: if Bruce Springsteen or Stevie Wonder could show support for a candidate by singing, then that discriminated against, subordinated, directly harmed rich people who could not. Having to give less than other donors to a specific politician was a very real harm to a wealthy person because the entire purpose of giving money was to gain friendship, access, and favoritism from the politician. And that, to Roberts, was as it should be; that was democracy at its best: “Government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. ‘Ingratiation and access . . . are not corruption’ [quoting Citizens United]. They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”

      Sean McCutcheon is simply a constituent, like the widow seeking help with her Social Security check. Of course, the widow has only her vote to offer as thanks. But Sean McCutcheon is rich; government cannot deny him the right to as much gratitude from as many politicians as he can buy.

      In Roberts’s view, the court was simply fulfilling its age-old role of protecting the lonely, endangered dissenter from an intolerant majority. “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects,” he wrote. “If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.”

      The Roberts view of democracy is the direct opposite of Justice Stephen Breyer’s vision of “active liberty,” in which the goal of the Constitution is to enable all citizens to participate in government. Breyer read a summary of his dissent from the bench on the day McCutcheon was decided: “Today’s decision substitutes judges’ understandings of how the political process works for the understanding of Congress, fails to recognize the difference between influence resting upon public opinion and influence bought by money alone, overturns key precedent, creates serious loopholes in the law, and undermines, perhaps devastates, what remains of campaign finance reform.”

      In his written dissent, Breyer laid out his view of the role of ordinary citizens in a democracy: “Campaign finance laws recognize that the First Amendment, which seeks to maintain a marketplace of political ideas and a ‘chain of communication between the people,’ and their representatives, cannot serve its purpose unless the public opinion it protects is able to influence government opinion. Campaign finance laws recognize that large money contributions can break that chain. When money calls the tune, those ideas, representing the voices of the people, will not be heard.”

      Roberts had dismissed the suggestion that committees could transfer funds to candidates, thereby getting around the “base limits” on contributions to individual campaigns. The chief justice suggested that the largely toothless Federal Election Commission could police these illicit transfers. Breyer responded dryly: “We react to [that claim] rather like Oscar Wilde reacted to Dickens’s depiction of the death of Little Nell. ‘One would have to have a heart of stone,’ said Wilde, ‘to read it without laughing.’”

      Democrats found little to laugh about in McCutcheon, but Republicans and wealthy donors were exultant. The first major case of the term had been a total victory for the conservative agenda.

      Chapter 2

      Justice of Hearts

      Justice Sonia Sotomayor

       Dissenting, Schuette v. Coalition to Defend Affirmative Action by Any Means Necessary

      On December 31, 2013, Sonia Sotomayor stood in Times Square and pressed a button to lower the famous ball, signifying to as many as one million revelers that the New Year had arrived. The entertainment card that night included rock stars Blondie and Melissa Etheridge, rapper Macklemore, and the scandalous twerking rocker Miley Cyrus. But Sotomayor was the headliner.

      It’s hard to imagine a bigger hometown honor for a girl from the Bronx than the Manhattan ball drop—but if there is one, Sotomayor has probably had it. Since 2010, this “Nuyorican” had been named to the Supreme Court, published a best-selling memoir, made a triumphant tour of the island where her parents was born, and appeared on Sesame Street to adjudicate a dispute between Goldilocks and Baby Bear (the verdict from the bench: Goldilocks should fix the chair).

      On New Year’s Eve, Sotomayor also made headlines in her day job as a Supreme Court justice. She issued a temporary stay of a district court order requiring the Little Sisters of the Poor, an order of Catholic nuns, to provide government forms requesting exemption from the Affordable Care Act’s contraception-coverage requirements. The Tenth Circuit had refused to stay the order; under Sotomayor’s order, the nuns could refrain from filing until the issue was resolved before the Supreme Court. The back-to-back episodes showed two sides of this unusual justice: on the one hand, a deadly serious judge attempting to apply the law carefully; on the other, a full-fledged celebrity reaching out to a broader public.

      She would turn sixty in the waning days of OT13. In that time period, she had risen from a childhood of poverty, disease, and dysfunction to the pinnacle of academic and professional achievement. Born in New York to Puerto Rican parents, she had been diagnosed with diabetes at the age of seven. Her father’s hands shook when he tried to administer her insulin injections; he was an alcoholic and would die of drinking only two years later. Her mother had to be at her job as a practical nurse, so Sonia learned to inject herself.

      After excelling in Catholic school, she graduated from Princeton and then Yale Law School. It was the dawn of the age of affirmative action, and Sonia was welcomed onto these elite campuses. She realized quickly that her background had not prepared her for life in the Ivy League. (Who, she wondered as an undergraduate, was this Jane Austen? And what was Alice in Wonderland?) She began a program of study on her own to give her the knowledge she did not have. Her determination paid off. She graduated summa cum laude and received the Pyne Prize, the university’s top undergraduate academic award. At Yale she was an editor of the Yale Law Journal.

      A recruiter from a top law firm made it clear that he considered affirmative action students unworthy; she complained to the university’s career office, which forced the man to apologize. As an assistant Manhattan district attorney, she caught the eye of legendary DA Robert Morgenthau and Senator Daniel Patrick Moynihan. Moynihan told the George H. W. Bush White House that he would block their judicial nominations unless they gave one to his protégée; in 1991, Bush agreed to name her as a federal district judge. Seven years later, Bill Clinton named her to the Second Circuit. Republican senators fought the nomination bitterly because they recognized her potential to become the first Latina justice. She was confirmed in 1998, however, and in 2009, Barack Obama nominated her to the US Supreme Court.

      Her way onto the court was not entirely smooth. Some advisers to the president urged him not to name Sotomayor, arguing that she lacked the academic brilliance of other potential nominees. “Bluntly put, she’s not nearly as СКАЧАТЬ