The Supreme Court’s standing with the public has declined in the past quarter century. Forty-four percent now approve of the way the court is doing its job, and three-quarters believe the justices’ personal or political views sometimes influence their decisions.
These findings came in a new poll conducted by the New York Times and CBS News and reported by a Times article. They reflected a decline from approval as high as 60 percent in the late 1980s and near 50 percent more recently.
The article did not reach conclusions about the cause of the lower approval rating. It ranks strongly above the approval rating for Congress of 15 percent. A Gallup tracking poll showed President Obama with a 47 percent approval rating.
Possible causes for the latest public judgment of the Supreme Court could be tied to growing distrust in major institutions, or a view that the court has been more political in some of its most high profile cases including Bush v. Gore and Citizens United v. Federal Election Commission, the article said.
Supreme Court Justices Ruth Bader Ginsburg and Stephen G. Breyer have suggested the court reconsider its landmark 2010 campaign finance ruling in Citizens United v. Federal Election Commission.
They made their suggestion on Friday, when the high court put on hold a Montana Supreme Court decision to restore a century-old state ban on direct corporate campaign spending on candidates and committees, according to a Washington Post article. The Montana decision was widely seen as flying in the face of Citizens United, which permitted unlimited political spending by corporations and labor unions.
In Citizens United, a 5-4 U.S. Supreme Court majority said such independent political spending does “not give rise to corruption or the appearance of corruption.” But Justices Ginsburg and Breyer, two of the dissenters, questioned on Friday whether that was correct given the shakeup in campaign finance practices since the opinion was issued:
“Montana’s experience, and experience elsewhere since this court’s decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’ ” Justice Ginsburg wrote.
“A petition for certiorari [from challengers of the Montana ruling] will give the Court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”
And that’s especially the case when it comes to the Supreme Court agreeing to decide the constitutionality of President Obama’s signature domestic achievement, the federal health care reform, in a presidential election year, a recent Kaiser Family Foundation poll seems to suggest.
The poll showed, according to a Huffington Post article, that almost 60 percent of Americans think the Supreme Court justices will follow ideology, not legal analysis, in ruling on the law’s controversial provision requiring people to buy health insurance.
Not that the article’s author, Mike Sacks, necessarily agrees. Sacks wrote, “In the first half of this term, the Court has shown more nuanced considerations, suggesting conservatives — including Chief Justice John Roberts — may bridge the divide between the five Republicans and four Democrats.”
A New York Times editorial delved into a different aspect of the intersection of politics and the courts, focusing on how three major cases arrived at the Supreme Court this term as part of an inherently political process. Read more
MSNBC’s Dylan Ratigan is increasingly providing a forum for debate about questions involving the influence of big campaign spending on impartial courts.
Last week, Ratigan interviewed on the cable TV show that bears his name two experts, JAS Communications Director Charles Hall (see Gavel Grab) and Landon Rowland, Janus Capital Group chairman emeritus and a trustee of the Committee for Economic Development.
More recently Ratigan published online a transcript of an interview with Rowland. The trustee of CED, a JAS partner group, voiced concern over the influence of campaign spending becoming “much more prominent and much more worrisome” in the last two decades in states where judges are elected.
Ratigan also wrote a Huffington Post commentary that asked, “Do we have a bought Supreme Court?” He went on, “This is a difficult, and troubling, question.” His commentary explored the court’s landmark Citizens United v. Federal Election Commission ruling last year, and its discussion of campaign spending and corruption. “[W]hat we need is a new legal theory for the 99%, a new way of looking at corruption,” he wrote.
Procter & Gamble, a large multinational company based in Ohio, has disclosed that it gave $40,000 in 2010 to a conservative political group that backed two Ohio Supreme Court candidates, despite P&G statements it does not spend in support of political candidates.
In August, P&G told shareholders it does not use corporate money to support electioneering, according to a a Cincinnati.com article. P&G’s board said in a proxy statement that ”corporate funds are not used in support of or in opposition to political candidates, political parties, political committees and other political entities organized and operating for political candidates.”
This week, however, the company said in an addendum to its proxy statement, “While this is our general policy even at the state or local level, we have occasionally permitted, based on exceptions approved by our Public Policy Team, contributions to groups that may use the funds to influence state or local elections to office.”
P&G said this week it gave $40,000 to Partnership for Ohio’s Future, formed by the Ohio Chamber of Commerce in 2006. The group supported the re-election of state Supreme Court candidates Maureen O’Connor and Evelyn Lundberg Stratton in 2010. Read more
In a single day, the First U.S. Circuit Court of Appeals handed two separate defeats to the National Organization for Marriage on its challenges to state campaign finance disclosure laws.
The appeals court upheld a Maine statute requiring disclosure of independent expenditures in candidate elections, according to an Associated Press article.
In a Rhode Island case, the appeals court affirmed a trial judge’s ruling that denied a preliminary injunction to NOM when it challenged the constitutionality of a state law requiring disclosure of independent expenditures.
Indiana-based lawyer James Bopp Jr. helped represent NOM in both cases. He is known for frequent challenges to campaign finance regulation.
In the Maine case, the appeals court panel issued an opinion saying the provisions challenged by NOM “neither erect a barrier to political speech nor limit its quantity. Rather, they promote the dissemination of information about those who deliver and finance political speech, thereby encouraging efficient operation of the marketplace of ideas.”
The court went on to quote from the U.S. Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission: “As the Supreme Court recently observed, such compulsory ‘transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.’” Read more
In a landmark vote, the American Bar Association today approved a resolution calling on states to adopt new rules for judicial disqualification. The recommendations had been four years in the writing.
The vote at the House of Delegates session of the annual ABA meeting in Toronto responded to what the ABA views as the increasing clout of campaign cash in judicial politics, according to a Thomson Reuters News & Insight article.
“No one should be a judge in his or her own case,” William Weisenberg, a member of the ABA committee that drafted the resolution, said about it.
Adam Skaggs of the Brennan Center for Justice said the resolution calls for rules that provide for prompt and meaningful review when a challenged judge denies a recusal request, and also requiring recusal when campaign spending raises reasonable questions about a judge’s impartiality.
“Reforming these procedures is always a slow process, but to have an organization as significant as the ABA underlining the importance of these changes can only spur courts to take a close look at reform,” said Skaggs. Read more
A standing committee of the American Bar Association, citing an “urgent need” for effective judicial disqualification procedures in state courts, has proposed new guidelines for consideration by its House of Delegates next month.
A resolution drafted by the ABA’s Standing Committee on Judicial Independence urges all 50 states to “establish clearly articulated procedures for judicial qualification determinations and prompt review by another judge or tribunal, or as otherwise provided by law or rule of court, of denials of requests to disqualify a judge.”
William K. Weisenberg, chair of the Standing Committee, said the resolution has “an underlying principle,” or “essentially a core value, … that no one should be a judge in his or her own case and that public trust and confidence in a fair, impartial and independent judiciary is enhanced in recognition of this principle.”
The resolution comes at a time of soaring special interest spending in judicial elections and takes into account recent Supreme Court rulings in Caperton v. Massey and Citizens United v. Federal Election Commission. An accompanying Standing Committee report explains:
“The mere possibility that a vast influx of additional campaign money might enter the [judicial elections] arena, which already in the past decade has been saturated with unprecedented campaign support, virulent attack ads, and concomitant diminution in public respect for State judiciaries, makes tighter controls over disqualification imperative. Thus there is an urgent need for States to have in place prompt, effective, and transparent disqualification procedures.”
In the 39 states where judges face some form of election, the resolution further urges adoption of requirements that all litigants and lawyers disclose campaign support for a judge before whom they are appearing. It urges adoption of guidelines for judges “concerning disclosure and disqualification obligations regarding campaign contributions.” Read more
A federal judge’s ruling that struck down a federal ban on direct corporate contributions to federal candidates (see Gavel Grab) is expected to be not the final word, but to ignite further legal fireworks.
When District Judge James Cacheris reaffirmed Tuesday his earlier ruling, it set into motion “what could be a pivotal court battle over one of the biggest legal and political issues of the day,” according to a report by The Caucus blog of the New York Times.
Judge Cacheris sits on the bench in Alexandria, Va. After questions were raised about his initial ruling, he held a rehearing. On Tuesday he reaffirmed his earlier opinion.
A Supreme Court decision from 2003, Federal Election Commission v. Beaumont, had upheld the federal ban and was cited by critics who questioned Judge Cacheris’ initial decision. On Tuesday, the judge wrote, according to the Caucus blog post, “that the Beaumont precedent was not controlling in the Virginia case because the ruling had referred only to nonprofit advocacy corporations and did not say anything about profit-making corporations.”
In the Virginia case, payments by a for-profit corporation are at issue. Read more
The watchdog group Common Cause grabbed plenty of media coverage for questioning whether Justices Antonin Scalia and Clarence Thomas should have stepped aside in voting on the Supreme Court’s landmark Citizens United case.
Common Cause trained a spotlight on a topic that doesn’t get a lot of media attention — recusal by Supreme Court justices — while it also drew mixed reviews for its petition to the U.S. Justice Department.
Common Cause seeks (see Gavel Grab) an investigation of whether a conflict had existed for either justice, and if it did, for an effort to vacate the 5-4 ruling of one year ago. The group said it appeared the justices had participated in political strategy sessions with corporate leaders “whose political aims were advanced by the decision.”
Election law scholar Rick Hasen was skeptical the appeal to the Department of Justice would succeed, Politico reported. “Justice Scalia has refused to recuse himself from cases involving a far closer relationship,” Hasen said. He noted the lack of evidence that the justices participated in political strategy meetings. Hasen added:
“I am a big critic of the Citizens United case. I would love to see it reversed.
“But this approach seems both unlikely to yield the desired result of seeing the case overturned and appears to be an unwarranted attack on the ethics of the Justices.”
Common Cause held a telephone conference call with reporters that was joined by Stanford Law School professor Deborah Rhode and George Washington University Law School professor Jonathan Turley. The Common Cause petition highlights a lack of ethics enforcement at the Supreme Court, they said, according to a Blog of Legal Times post.
“The rules are left to the accused,” Turley said. “They become their own judges.”
Turley called the charges leveled by Common Cause “disturbing.” He also said, “At a minimum, the Common Cause letter should raise questions about what we need to do, so there isn’t this vacuum at the Supreme Court when it comes to judicial ethics,” according to a Christian Science Monitor article. Read more