The good news is that there are numerous things Congress can do to undo the Court’s bizarre doctrine that money is the same thing as free speech and corporations have Bill of Rights freedoms and protections as “persons.”
Neither of these “rights to bribe” by the morbidly rich and corporations were recognized in the early years of our republic. Even today we’re unique among advanced democracies in holding these Supreme Court-created doctrines which underpin much if not most of today’s political corruption.
Congress has never, in the history of the United States, passed a law saying rich people buying politicians is the same thing as free speech or that corporations have a right to bribe politicians and lie to the public. To the contrary, Congress has passed hundreds of laws — which were overturned by these three Supreme Court decisions — regulating money in politics and criminalizing political corruption.
The Court’s inventing these twin doctrines has even corrupted the other two branches of government, leading today to legislative paralysis, an erosion of civil and voting rights, and widespread public cynicism.
The Executive branch of our government has done a lot of damage over the past five decades, from Nixon committing treason to blow up LBJ’s 1968 peace talks with Vietnam so he could beat VP Humphrey in that election, to Reagan’s massive tax cuts and defunding of our schools and colleges, to Bush’s two illegal and unnecessary $8 trillion wars, to Trump’s burning spies by passing classified information along to Russian intelligence while president.
The Legislative branch has also played a role in most of those fiascos and crimes, as well as the current Republican circus in the House of Representatives.
During the Bush presidency they passed legislation allowing for more pollution (the Clear Skies Act), getting around environmental rules that protect our forests (the Healthy Forest Restoration Act), and defunding the IRS and the EPA, the perennial enemies of the fossil fuel industry and their billionaires who own the GOP.
But all the treachery of both branches pales in comparison to the damage the US Supreme Court has done to our country ever since Richard Nixon put Lewis Powell — author of the infamous “Powell Memo” that told billionaires how to take over American media, courts, colleges, and seize ownership of our politicians — on the Court and it began its long swing to the hard right.
In fact, it was Powell’s work and influence on the Court that made possible the corruption of the Executive and Legislative branches mentioned above.
Most people know that the Republicans on the Supreme Court, beginning with the Powell/Rehnquist eras, began an aggressive war on unions, consumer protections, voting rights, and civil rights. But few realize that those Supreme Court doctrines are also responsible for the death of 2,977 innocent people on 9/11.
I flew to Michigan earlier this week because my niece was dying from what I consider medical malpractice in a hospital cutting back on staffing to support the millions paid to its senior executives — another problem facilitated by the Supreme Court — although that’s a story for another time.
On the flights, though, I again noticed that the cockpit doors were fully hardened. (I’ve been a licensed pilot since 1972, so tend to notice what’s going on with airplanes and jets.) The doors to the cockpits were sheathed with what looked like stainless steel, securely locked, and each had a keypad with a secure pin code necessary to gain entry.
There’s a backstory here that explains everything from the success of the 9/11 attackers to why the train crash in Ohio last week happened and was allowed to poison a community. And it all tracks back to corrupt Republicans on the Supreme Court.
Back in the day, if you’re old enough to remember, or a fan of newspaper archives, there was a rash of hijackings of planes, mostly to Cuba. It got so bad that in December of 1968, kicking off the holiday travel season, TIME magazine ran an article titled What to Do When The Hijacker Comes. Just between 1968 and 1972, there were more than 130 airplane hijackings in the United States; on a few occasions there was more than one a day.
While the hijackings to Cuba and other destinations largely petered out in the early 1970s, passengers crashing cockpit doors persisted for decades.
In just the two years before 9/11, for example, there were thirty different times airline cockpits were breached by passengers. In one case in 2000, other passengers restraining a man trying to get to a Southwest Airlines plane’s controls accidentally suffocated him to death. A few months later a British Airways 747 passenger breached the cockpit door, severely bit the captain’s ear, disengaged the autopilot, and threw the plane into a 10,000-foot dive before the co-pilot was able to regain control.
Airline pilots, their unions, and passenger groups had been begging the airlines to harden their cockpit doors since the 1960s— they were flimsy enough to be kicked in — but doing so would have cost $100,000 or more per plane and the airlines really didn’t want to spend the money.
In 1996, Vice President Al Gore convened the White House Commission on Aviation Safety and Security, and witnesses suggested hardening cockpit doors to securely keep pilots separate from passengers. Word leaked along with a preliminary report in September of that year, though, and the airline’s lobbyists jumped to the task.
The Supreme Court, after all, had authorized them to pass out as much money to politicians and their campaigns as they wanted.
Vice President Gore quickly backed away from the expensive proposition of hardening airline doors, writing a groveling letter to Carol Hallet, president of the airlines’ lobbying group the Air Transport Association, saying:
“I want to make it very clear that it is not the intent of this administration or of the Commission to create a hardship for the air transportation industry,” and adding that the Clinton administration and the airlines could work “in full partnership.”
The next day, according to media reports, TWA donated $40,000 (nearly $100,000 in today’s dollars) to the DNC; over the following month American, United, Delta, and Northwest similarly threw money at the Clinton administration. The total haul was, according to The Center for Responsive Politics, $627,000 ($1.2 million in today’s money).
All of this was completely legal and, by then (21 years after Louis Powell and his buddies on the Supreme Court had legalized political bribery), pretty routine. Both political parties took these kinds of bribes every day, since internet fundraising wasn’t yet a thing and, to paraphrase Willie Sutton, corporations were where the money was.
The result was airline doors weren’t hardened, so on 9/11 the mostly Saudi hijackers were able to easily breach the cockpits, kill the pilots and co-pilots, and take over the planes.
How did we get here?
In 1978, in a decision authored by Lewis Powell himself, the majority Republicans on the Supreme Court ruled in their Bellotti decision that corporations giving money to politicians — essentially bribing them — was the same thing as your First Amendment-protected right to free speech.
They ruled corporations could bribe politicians with their “free speech” money because, they said, corporations are “persons,” and therefore have free speech rights under the First Amendment to the Constitution.
As a result, by 1996 the airlines could legally shower money on Clinton, Gore, and both parties in Congress, convincing them that requiring airlines to harden their cockpit doors was “excessive big government regulation.”
Which is why, when Mohammad Atta and his merry band of Saudis hijacked the airliners on 9/11, they were able to easily make their way into the cockpits, kill the pilots and co-pilots, and fly the jets straight into the World Trade Center and the Pentagon.
It’s hard to overstate how much damage these corrupt rulings by Republicans on the Court — from Buckley and Bellotti in 1976/1978 to Citizens United in 2010 — have done to American democracy, our nation, and our people.
With the blessing of the Supreme Court, Billionaire ideologues have paid off politicians — most Republicans, but a few “Problem Solver” Democratic shills as well — to:
— Gut our public schools to make way for billionaire- and church- funded (mostly all-white) private schools,
— Privatize public electric and water utilities so billionaires can make money on life’s essentials,
— End government subsidies for college to keep education as a bar only wealthy people can easily jump over,
— Keep their own taxes so low that most billionaires pay 3% income taxes or less,
— Raise the Social Security retirement age to 67 and start privatizing Medicare through the Medicare Advantage scam,
— Sell off public lands for pennies on the dollar to mining and drilling interests,
— Fight efforts to force chemical and fossil fuel companies to clean up their own toxic dumps,
— Allow banks, airlines, and hospitals (among others) to nickel-and-dime us to death,
— Ship our factories and jobs overseas,
— Defund the IRS so it can’t afford to audit billionaires,
— Make it harder for low-income workers, folks on Social Security, and students to vote,
— Purge tens of millions of Democratic voters from voting rolls just before elections (the way Jeb Bush handed Florida to his brother with a 537 vote margin after purging 20,000 African Americans from the rolls in the months before November, 2000),
— Gerrymander states along racial lines to insure white rule, and
— Make it hard to break up monopolies.
None of these things were supported by a majority of voters; all were gifts to special interests who’d greased the palms of Congress with cash, legalized by five Republicans on the US Supreme Court.
So, what can we do about this crisis of our democracy?
It turns out there are actually multiple ways Congress can deal with this problem.
The first is to subject the Supreme Court to the same ethics rules every other federal judge must follow.
For example, Clarence Thomas’ wife was directly involved in Trump’s effort to overturn the 2020 election, but Thomas — and only Thomas — ruled that Trump’s treasonous efforts to stay in the White House even though he lost the election should be considered by the Court itself.
Had there been ethics rules in place, Thomas would have been forced to recuse himself, but the Court has held for years that it doesn’t want to abide by such ethical guidelines.
Congress has the power to impose ethics rules on the Court for the simple reason that the Constitution puts Congress over the Court. Article III, Section 2 clearly states:
“[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
Congress could also “regulate” the Court to mandate live cameras for all proceedings so they’d be available live on the Internet or C-SPAN.
But the most powerful and controversial thing Congress could do is to pass legislation stripping from the Court the power to proclaim that corporations are “persons” and money is the same thing as free speech.
This is not a wacky left-wing theory, by the way.
President Ronald Reagan hired into the White House two well-known rightwing lawyers to try to figure out a way Congress (which Republicans also controlled at the time) could overturn the Supreme Court’s Brown v Board desegregation decision and Roe v Wade, which legalized abortion nationwide.
Their names were Samuel Alito and John Roberts, and both were enthusiastic about their mission to get around the Supreme Court’s “liberal” decisions about race and abortion.
At the end of this article I’ve summarized and quoted Roberts’ logic about how Congress could blow Citizens United out of the water without amending the Constitution, if you want to get into the nerdy details (which I find fascinating!).
In summary, though, Roberts argued to Reagan that, if they really wanted to press the issue of overturning Roe and Brown, Congress could simply pass legislation citing Article III, Section 2, specifically saying that Roe and Brown were null and void and that the Supreme Court was exempted from ruling on issues surrounding racial segregation or abortion.
If Democrats were to adopt John Roberts’ logic, they could go a long way toward stripping out of our political systems the money corruption that the Supreme Court introduced with Buckley, Bellotti, and Citizens United.
The final two ways the Biden administration and Congress could overturn the Court’s legalization of political bribery, both of which have been discussed in the media extensively, are:
1. To use their power to “regulate” the Court by adding more members. There are 13 Circuit Courts at the moment and historically the Supreme Court often had as many members as there were Circuit courts. A 13 member Court would probably work far better than its current small size.
2. To pass a Constitutional Amendment overturning Citizens United by explicitly declaring that money is not the same thing as speech and corporations are not entitled to protections of persons under the Bill of Rights. This would require the approval of 2/3rds of each body of Congress and 3/4ths of the states to to be put into the Constitution.
Neither of these will happen any day soon, particularly given the current composition of Congress.
Similarly, it’s unlikely Congress or even this administration has much appetite to try John Roberts’ strategy of barring the Court from its whole-cloth invention of the twin doctrines of corporate personhood and legal political bribery.
But the harms continue to accumulate.
— The Supreme Court, for example, overrode Congress and the President, giving Red states the power to opt out of Medicaid expansion and leaving millions without health insurance. People have died because of that decision, based on the thinnest and most bizarre interpretation of the Constitution.
— They gutted the Voting Rights Act and the Civil Rights Act, keeping Republicans in control of Congress even when Democrats win the majority of votes nationwide.
— Billionaires pay 3% income taxes with impunity because of these corrupt Supreme Court decisions allowing the morbidly rich to bribe politicians.
We must prepare to act when the opportunity to solve this crisis of our political system presents itself.
If American democracy is to become truly functional, if the will of the majority of Americans is to be put into law while corporate and billionaire power are reduced, now is the time to begin working out strategies for the next time Democrats control both Congress and the White House.
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Here’s the summary of John Roberts’ argument to Reagan about how Congress can overrule the Supreme Court using Article III, Section 2 of the Constitution, as summarized from my book The Hidden History of the Supreme Court and the Betrayal of America.
Reagan, via his Counselor to the Attorney General Ken Starr, tasked Roberts with reviewing the entire history of the U.S. Supreme Court for cases that suggested a legislative or administrative way to overturn Roe v. Wade and Brown v. Board.
In response, Roberts wrote an extraordinary 27-page document that’s largely unknown, in the form of a memo on the letterhead of the Office of the Attorney General, to Ken Starr, signed by Roberts as Special Assistant to the Attorney General.
It is titled, “Proposals to Divest the Supreme Court of Appellate Jurisdiction: An Analysis in Light of Recent Developments.”
Roberts wrote that he had found:
“[O]ver twenty bills [then pending in Congress] which would divest the Supreme Court (and, in most instances, lower federal courts as well) of jurisdiction to hear certain types of controversies, ranging from school prayer and desegregation cases to abortion cases.”
What Roberts and his researchers had discovered was substantial.
Blocking the Court from ruling on desegregation, abortion, or even legalizing political bribery is based on the Exceptions Clause of Article III, Section 2 of the Constitution mentioned a moment ago, which stipulates that the Courts’ powers exist “with such Exceptions, and under such Regulations as the Congress shall make.”
Roberts noted in his memo that:
“[T]he exceptions clause by its terms contains no limit… This clear and unequivocal language is the strongest argument in favor of congressional power and the inevitable stumbling block for those would read the clause in a more restricted fashion.”
Roberts concluded with a 1968 comment from Senator Sam Ervin of North Carolina, one of the Senate’s most outspoken opponents of racial integration and abortion, and biggest supporters of apartheid South Africa.
Roberts wrote to Reagan:
“As Senator Ervin noted during hearings on the exceptions clause, ‘I don’t believe that the Founding Fathers could have found any simpler words or plainer words in the English language to say what they said, which was that the appellate jurisdiction of the Supreme Court is dependent entirely upon the will of Congress.’”
Roberts agreed with Irvin: the Constitution was clear that Congress could limit the scope of Supreme Court actions and rulings:
“[W]e are not considering a constitutional clause that is by its nature indeterminate and incapable of precise or fixed meaning, such as the due process clause or the prohibition on unreasonable searches and seizures.”
This was clearly the Founders’ and Framers’ original intent, Roberts argued, because:
“[T]he exceptions clause ‘was not debated’ by the Committee of Detail which drafted it or the whole Convention.”
Citing Federalist 81, Roberts wrote:
“Hamilton noted that the clause would enable ‘the government to modify [appellate jurisdiction] in such a manner as will best answer the ends of public justice and security,’ and that appellate jurisdiction was ‘subject to any exceptions and regulations which may be thought advisable.’”
Section III of Roberts’ paper for Reagan on Congress overriding the Court dives deep into Supreme Court decisions to find precedential rulings explicitly saying that Congress can regulate the federal courts and block the Supreme Court from ruling on particular issues.
Beginning with the 1869 decision Ex parte McCardle, Roberts wrote:
“A unanimous Court upheld the power of Congress to divest the Supreme Court of jurisdiction. The Court clearly based its decision on Congress’ power under the exceptions clause. Chief Justice Chase began the opinion by recognizing that the appellate jurisdiction of the Court ‘is conferred “with such exceptions and under such regulations as Congress shall make.”’”
Quoting former Chief Justice Chase again, Roberts added his own emphasis:
“We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this Court is given by express words.”
He continued his historical exposé of court-stripping with another 1869 decision, Ex parte Yerger, and then United States v. Klein (1872), Wiscart v. Dauchy (1796), Durousseau v. United States (1810), Daniels v. Railroad (1865), and The Francis Wright (1881).
In The Francis Wright, Roberts found that Chief Justice Morrison R. Waite (whose court oversaw the infamous 1886 “corporate personhood” Santa Clara County v. Southern Pacific Railroad case) wrote for a unanimous court, quoting him as follows:
“Not only may whole classes of cases be kept out of the jurisdiction altogether [because of congressional restrictions], but particular classes of questions may be subjected to re-examination and review, while others are not.”
Each case strengthened the idea that Congress could simply pass a law, without even needing a super-majority, that barred the Supreme Court from ruling on a set of issues like Reagan’s hot-button issues of school desegregation and abortion. Or, today, on legalizing political bribery.
Moving toward late-19th-century decisions, Roberts quoted the court in Colorado Central Consolidated Mining Co. v. Turck (1893):
“[I]t has been held in an uninterrupted series of decisions that this Court exercises appellate jurisdiction only in accordance with the acts of Congress upon the subject.”
Roberts, in his own voice, added:
“Again, it bears emphasis that the basis for this theory is the implicit exercise by Congress of its exceptions power….”
Still building his case, Roberts jumped into 20th-century rulings, starting with National Mutual Insurance Co. v. Tidewater Transfer Co. (1948). Writing for the majority, Justice Felix Frankfurter noted in the decision:
“Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.”
About the 1944 Yakus v. United States case, Roberts wrote:
“Justice Rutledge noted… that ‘Congress has plenary power to confer or withhold appellate jurisdiction.’”
Regarding Flast v. Cohen (1968), Roberts quoted from Justice William O. Douglas, who wrote:
“[A]s respects our appellate jurisdiction, Congress may largely fashion it as Congress desires by reason of the express provisions of Section 2, Article III. See Ex parte McCardle.”
In Section IV of his memo, Roberts again covered the span from the framing of the Constitution to the time of his writing the memo, quoting another dozen or so cases that referenced, less directly, the power of Congress to exempt the Court from certain issues or decisions.
Roberts also noted that the original Judiciary Act of 1789 (which created the federal court system) also explicitly refers to Congress’ power of exception.