Photo by Ian Dick | CC BY 2.0
Russian election meddling, mass shootings, immigration, trade, White House staff changes and sexual misbehavior make daily headlines, while three decisions of the U.S. Supreme Court that pre-date the Trump presidency may have more enduring and destructive impact.
The 2008 Heller decision on guns, the 2016 McDonnell decision on corruption and the 2010 Citizens United case on money in politics directly affect public safety, good governance and our electoral system. Measured by the damage they continue to inflict on our polity and people, those cases are in my view the three worst judicial decisions of the past decade. Why so?
District of Columbia v. Heller. On the face of it, Justice Scalia’s opinion was no big deal. It merely held that the DC law barring handguns in the home violated the Second Amendment. Yet its affirmation of an individual right of gun ownership apart from any “militia,” was groundbreaking. For it put up a constitutional barrier that has empowered the N.R.A. and its members to resist any significant restriction on gun ownership. With assault rifles and other automatic and semi-automatic weapons readily available, it’s not surprising that we have so many mass shootings in recent years.
In his March 27 op-ed in New York Times, Retired Justice John Paul Stevens, among the four Heller dissenters, called for repeal of the Second Amendment as the most effective way “to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other option.” The huge turnouts in the recent student-led March for Life demonstrations suggest that repeal of the Second Amendment is not an impossible goal.
McDonnell v. United States. A Virginia jury convicted former Governor Bob McDonnell on 11 corruption-related felony counts in 2014. During his years in office, McDonnell and his wife accepted more than $175,000 in loans and gifts from a businessman seeking the state’s help in promoting a dietary supplement.
Despite the public outcry over what appear to be clear conflicts of interest, a number of senior public officials expressed collegial support of the ex-Governor in his successful appeal. Speaking for a unanimous court in overturning the convictions, Chief Justice Roberts remarked at the close of his opinion: “There is no doubt that this case is distasteful; it may be worse than that. But our concern is not with tawdry tales of Ferraris, Rolexes and ball gowns.”
In implying that prosecutors need to show an explicit agreement linking a campaign contribution or gift to a contract, grant or vote, the Court raised the bar for proving corruption to almost unreachable heights. Not surprisingly in the months following the McDonnell decision, government prosecutors lost several major corruption cases (including the ones against Senator Menendez and several New York state legislators). Without full accountability for conflicts of interest and bribery, the public loses confidence in its public representatives.
If corruption is the evil child, big donor money and Political Action Committees (PACs) are the dysfunctional parents.
Citizens United v. Federal Election Commission. There was money in politics even before Citizens United. The flow of cash directly or through lobbyists polluted elections and corrupted elected officials. In holding that political spending is protected speech under the First Amendment, Citizens United poured gasoline on burning coals. The Court’s decision meant that corporations and unions could spend unlimited amounts of money on political activities if done independently of a party or candidate.
It didn’t take long for political action committees (PACs) to find legal ways to deploy vast sums to help certain candidates for office or members of Congress who would vote according to their interests. Now we find not only major industries such as defense, pharmaceuticals and finance, but also the N.R.A. and AIPAC (the Israel lobby) using PACs and gift travel to buy support from Senators and Representatives.
Money is the root of evil in politics, not only because it corrupts elected officials but more importantly because it robs citizens of the power of their vote and results in policies born of self-interest.
Heller, McDonnell and Citizens United are doing this country incalculable harm. They should be either overturned by the Court or repealed by constitutional amendment.