We Used to Call Them Kings
by Eric Segall
December 14, 2020
This interview with Eric Segall, author and professor, was conducted and condensed by franknews.
Eric | I've been teaching and writing about Constitutional law for 30 years at Georgia State University College of Law here in Atlanta. My specialty is the Supreme Court. If you ask law people about me, they would say that I am very much a Supreme Court critic.
frank | What does it mean to be a Supreme Court critic?
In 2012, I wrote a book called Supreme Myths: Why the Supreme Court Is Not a Court and Its Justices Are Not Judges. That gives you some flavor of where I am coming from.I wrote the book during the first Obama administration. I didn't write it as a progressive displeased with the Supreme Court, I wrote it as a progressive who thinks it's a broken institution and thinks it has been broken since 1857.
No matter who's in charge, no matter who's on it, it will despoil anybody who doesn't have a strength of character that is singularly strong.
And there have been very few justices with a strength of character that is singularly strong.
A lot of the people we’ve spoken to this month mentioned that after Buckley vs Valeo, the country was able to shamble together some campaign finance laws, the crux of which was the McCain Finegold Act. But, shortly after that act, the Supreme Court started striking down reforms.
Who made up this court, and what makes up their ideology?
I have always thought that the logic of Buckley v. Valeo, the idea that independent expenditures are protected, but the contributions can be limited, was incoherent and bizarre. But, you are right, it was workable for a while. Justice Rehnquist, no liberal of course, was willing to let go a lot of state restrictions on corporate spending because of his federalism and his states' rights views. He wrote a big case that allowed states to limit corporate expenditures.
The watershed event has nothing to do with cases or law or anything else. The watershed event was Justice Alito replacing Justice O'Connor and Justice Roberts replacing Justice Rehnquist. That switch changed everything. And not surprisingly, Citizens United comes pretty soon thereafter. A case that I think is one of the most misunderstood cases in history.
Let me back up and tell you some background on myself first to put this in context. I think the Supreme Court should almost never strike down laws. People were concerned during ratification that judges had too much power in their ability to strike down laws. Alexander Hamilton's response in Federalist paper Number 78, was that they would only do so when there's an irreconcilable variance between a law and The Constitution. They won't do it very often.
The Supreme Court was supposed to be a backstop when there was a clear constitutional error.
I believe in that very strongly. I think that's what our world should look like.
That's the context of my next sentence, which is: Citizens United reached the right result. I mean, it did. Citizens United is about a nonprofit institution wanting to show a movie on cable or in movie theaters and the government wanting to censor that movie. We live in a country where we don't censor things. If Exxon or the New York Times wants to put out a book, a TV show, or a movie, in America, they get to do that. I'm not as big a freedom of speech person as most but that's the essence of freedom of speech.
What went wrong in Citizens United was the court used that case to overturn the case Justice Rehnquist wrote a few years earlier. The rationale was insane; they said that corporations have exactly the same free speech rights as people. We can agree that money facilitates speech. We can agree that money sometimes co-mingles with speech, and when it does, it raises hard legal issues. But none of that means corporate speech and individual speech is the same. The court should have said, this is a non-profit, this is an ideological grouping of people, who want to put out a movie. They should have said the government can't censor that, and we will leave the hard issues for another day.
Instead, they come out with this blockbuster, crazy ruling that says corporations are just like people.
The thing that's misunderstood about this case is the idea that this case has to come out that way unless you want the government censoring movies or books. In fact, Kagan was asked in the oral argument, if this were a book could the government censor the book? And she fumbled. She had no good answer to that. What she should've said is that's a very hard question, the answer is no, I wouldn't think so, but that's not this case.
Corporations have to have constitutional rights, otherwise, the police could go into the New York Times, search their offices without a warrant, and close them down. We all agree that corporations have some constitutional rights. What thoughtful critics of these cases will say is, of course, they do. We're not suggesting corporations don't have any constitutional rights. What we're suggesting is each case is different, and you have to look at what's happening in each case. That's why Citizens United is so pernicious.
What are other key cases, in your view?
Well, then we get McCutcheon, which is a case no one hears about unless you're a lawyer or a law professor, but it's a case where a guy in Alabama writes a check for a campaign donation and sends it in the mail to a politician in California. The court says that's protected speech. Well, writing a check is not protected speech in any way, shape, or form. If I write a check to a plumber, I'm not speaking. I agree that that check could have helped facilitate the campaign speech of the person it was sent to, but facilitating speech and speaking aren't the same. McCutcheon closed the door on any arguments for campaign finance other than limits on direct contributions.
The third case is the one that really kills me. Again, this is a case nonlaw professors don't really hear about. So Citizens United says the only kind of corruption that we're going to let be used as a compelling interest to limit election type speech by corporations or anybody else is quid pro quo. If it's not quid pro quo, it's not a compelling interest. You and I both know that's ridiculous. Donating to a politician gets you access if you give enough. Montana had a campaign finance law on the books since the early 20th century. They passed that law because there was incredible corruption in this very small state, by a single big company that had bought all the politicians through non-quid pro quo contributions, but other sorts of means. Montana had this law for almost a century. The Montana Supreme Court looks at that law and says that, yes, Citizens United seems to say, this is unconstitutional. This limits the speech of corporations, but we're different. They went through pages of historical data and evidence to point to that fact that the corruption in their state was so bad that they had no choice. The Supreme Court did something called a summary reversal, they didn't have an additional briefing, they didn't hear the case. They just reversed it.
Think about that for a minute. Think about that from a question of federalism, or from the perspective of 1980s Republicans, right? This decision is judicial review run amuck. That is not law. That's just values and preferences.
I'm not suggesting in any way that without Citizens United's broad rationale, without McCutcheon, and then without the Citizens United summary reversal of Montana, that we'd have a great system where the money would be out of politics.
But it'd be better. And more importantly, let the states be laboratories for this. Let them experiment and try to figure out how to reduce the corrosive effects of money and politics. I rarely agree with Justice Rehnquist, but I do here because this is where he was coming from in First National Bank of Boston v. Bellotti.
Is there an underlying ideology behind granting corporations these rights? I know you write a lot about originalists, is there a view of corporations under that framework?
My last book was called Originalism as Faith. I have been eating, sleeping, drinking, breathing, talking, writing about originalism for ten years. First of all, there's never been an originalist Supreme Court justice in history. Not Scalia, not Thomas, not Gorsuch. Kavanaugh has never been one.
In Citizens United, Justice Stevens, a decidedly non originalist justice, in the dissent chided Scalia, an originalist, by saying that in 1789 and even probably later, corporations only had the rights that states gave them. They were state-chartered companies. The state could give free speech rights or not. It was up to the states. If you were really an originalist, this is an easy case. Scalia responded in his concurring opinion to Justice Stevens. He said, even if you're right about this, historically corporations have changed so much that different standards should apply. Well, that's just living constitutionalism.
Richard Posner wrote a piece for Slate after the Alabama case. He suggested justice Roberts is either stupid or a liar. Because if he thinks that only quid pro corruption is bad, then he's stupid. Posner said, I don't really think he thinks that because we know Justice Roberts is not stupid. That makes him a liar. He can't think that the only type of corruption that's bad in politics is quid pro quo. If I'm a billionaire and I give someone's PAC $50 million, and then I call the politician on the phone the next day, is that person going to see me? Of course. And if in that meeting, I say, I'm not asking you to do anything for me, but just so you know, I have a strong interest in xyz. It is going to get done. I mean, come on people. The whole thing is just Supreme Court justices run amuck. You can quote me on that one.
How can corruption, legally, be defined more broadly, to encompass that reality of garnering favor?
That's a great question. I'm an expert in the constitutional law of campaign finance reform. I am not an expert in campaign finance reform, on what works and what doesn't. I try not to talk about things I'm not an expert on, so let me just say this: that should be up to people we vote in or vote out.
The court should just defer to the policy makers and let us vote them out if we don't like them. Let's put it this way, I have no doubt that I know as much about what's good campaign finance reform or bad campaign finance reform as anybody on the Supreme Court, except maybe Justice Breyer, who actually worked for the Senate. What does Justice Roberts know about campaign finance reform? Seriously, nothing.
So my answer is, I'm not smart enough to answer your question, but neither is Justice Roberts.
Do you think the Supreme Court has run amuck because of who we've put in power, or is it a design flaw?
It's the fault of the design of the Supreme Court. Let me ask you a question. You work for franknews, right? Is it yours?
No. I work for somebody.
Okay. If tomorrow you received a contract that gave you a job for life, unless you committed a crime, nobody could review your decisions, you are the boss of this company, you can never be fired, unless you commit a crime. Would you do your job differently than you do it now? Maybe a little bit?
Okay. Now imagine yourself, 30 years from now. You've had this job for life that no one can take away from you. You wouldn't let theoretical, pre-commitments deter you from doing what you want.
I have a long story about this that really drives the idea home. I was doing a radio show with Dahlia Lithwick about the Obamacare case. And I said, we're both liberal progressives, I hate to say this, but Justice Kagan needs to recuse herself. And that took Dahlia by surprise. She said, what are you talking about? If she recuses, it is likely that they're going to overturn it. Why should she recuse?
The major reason was that her deputy litigated the case in the lower courts. There's a rule that if you were a lawyer in the lower courts, you can't serve as a judge on the same case. Technically she wasn't the lawyer, but the deputy was. I wrote a piece called A Liberal’s Lament on Kagan and Health Care: Should Elena Kagan recuse herself in the ACA case. It went kind of viral by law professor standards. I also wrote a piece in the LA Times supporting it. In the LA Times, I referred to myself as a progressive. I'm in favor of Obamacare, but I'm sad to say under legal rules, Kagan has to recuse herself. That probably means the end of Obamacare, but the rules are the rules.
I received a handwritten letter from a reader. It said:
"Professor Segall, I read your op-ed and I'm really confused. You identify as a progressive in favor of Obamacare and helping 30 million Americans get health insurance when otherwise they would not have. Why in the world would you want Obamacare to go away because of a technicality about recusal? Why would you do that if you really are a progressive who cares about Obamacare?”
That threw me for a loop. I thought about Justice Kagan. And I thought, I am sure in her heart, she believes that there are 30 million Americans a year whose lives depended on Obamacare being upheld. And she has unreviewable power for life. Would she really trade in Obamacare for a technicality about recusal? And then I thought, what would I do if I were her? Because I know the right legal answer: don't hear the case. The rules are clear. Well then, 30 million Americans don't get health insurance. Now repeat that for abortion, affirmative action, or campaign finance reform. You're going to do what you think is best. You have a job for life with unreviewable power.
In a democracy, we should never give any institution unreviewable power for life. We used to call that a king. No democracy gives their highest court judges life tenure except maybe Iceland. They do need their independence, don't get me wrong. Other countries have created fixed terms of 20 years or mandatory retirement ages. Anyway, it really made me think: what would I do if I was Justice Kagan.
I would probably say, fuck the law. I want 30 million Americans to get health insurance.
It's too much resting on the shoulders of people who then end up having to make political decisions.
That is a great way to put it.
How do you think we fix that?
Term limits would help, but I'm at the point where I think they need to get scared. That's the only way. We need to scare them with jurisdiction stripping, meaning taking away some of their authority. Congress has the power to do this. It's happened in the past. FDR scared them with court-packing, after the New Deal. In 1870, the Supreme Court struck down Congress' power to make paper money legal tender for past debts. After Grant got two new appointments, they reversed that decision one year later because they now had the political will to do so. It is about politics not law.
They need to be more modest. They need to be more humble. They need to be more deferential.
They need to do what Alexander Hamilton told them to do in 1787: unless there is an irreconcilable variance, clear inconsistency, something everybody agrees on, then let the people and their elected leaders make the decisions.
Checks and balances, some might say.
Do you think there is political will for that in Congress?
That's a really good question. If the Democrats had 55 senators and the Supreme Court was stopping a Democrat President and a Democrat Congress from doing what they want to do, which this Supreme court will do, then yes. But you have to get rid of the filibuster first.
When Justice Scalia died in February of 2016, progressive and famous liberal constitutional law professors were writing op-eds about what the great new liberal court was going to do. Wait until Hillary gets in. We're going to overturn Citizens United. We're going to make affirmative action easier. We're going to solidify abortion.
I said, no, we shouldn't do any of that. We have four Republicans and four Democrats, we should freeze it there. Congress can't constitutionally stop the president from nominating anybody he wants, that's his power, but the Senate can say, sorry, we're not going to take them, as we found out with Merrick Garland. If you’re a Republican president and a Democrat dies, you have to give us a Democrat. If you're a Democrat president and a Republican dies, you have to give us a Republican. If there is a four-four split, if they are going to decide the case, by definition, one Republican has to vote with one Democrat, or one Democrat has to vote with the Republicans. I still think that's a great idea, frankly.
Justice Kagan in 2017 gave several public speeches where she said, 2016 really wasn't so bad. We had to compromise more. We had to issue narrower decisions. We had to be more attuned to each other. She was clear to say, this can't last forever, but she listed all the benefits of the four-four evenly divided court. If you read her speeches and my law review article, or my New York Times piece, or my Daily Beast piece on the subject, they were pretty similar. And if you think about it, it makes sense. Why should the country be turned around because of a five to four partisan vote of unelected, life-tenured lawyers? Why would we live in that world? If, for example, Justice Roberts and Justice Kagan agree on a decision, I am going to say well, those are two pretty smart people. They have different politics, but they both think it's a good idea. I can live with that. I may not like it, but I can live with it. What I can't live with is five, four partisan decisions changing our country.
What do you think the future of campaign finance legislation looks like, particularly with Amy Coney Barrett’s appointment?
Your assumption is this country has a future? I'm not kidding when I say that. 74 million Americans voted for Donald Trump — that doesn't give me the warm and fuzzies. I mean you're obviously very smart and also young, but there's nothing inevitable about this country. We had a Civil War not that long ago by world standards. The Supreme Court was in crisis in 1935. We're not forever.
Assuming we're a country, I think the future of campaign finance reform is extraordinarily dark. I think that the judges who have been put on the Supreme Court recently, Kavanaugh, Gorsuch, Barrett, Alito, not Roberts, and Thomas all have very strong Federalist Society ties. The Federalist Society is run by people who believe in Citizens United all the way down. If anything, they're going to overturn Buckley and say contributions can't be limited either. And boy, wouldn't that be dark?
Absent court-packing, balancing the court, or justices dying, there will be no progress. There is no chance, absent major court restructuring, of campaign finance reform getting better.
Things will only change if the people change. Which, by the way, is how constitutional law changes – when the people change. Which may make you wonder, are we a country of laws or people?
In this respect, it certainly is defined by the people, and Republicans seem to be attuned to that. Do you think Democrats have learned anything over the past couple years?
Probably not. There's a maybe in that, but Biden is not going to help. A colleague of mine worked for Clinton and Obama, but he left Obama early because he was so depressed about judges. He was part of the nomination process. He said Obama cared, but not really. Clinton cared, but not really. Is Biden, who is the bequeather of that going to care? Probably not.
Seems bleak and not strategic.
Yeah, that's a great phrase. The Republican party has been incredibly strategic about judges and the Democrats have been completely not strategic.