If you could change 4 Supreme Court cases what would you change

[MarkD]

1. Bush v. Gore
2. Griswold v. Connecticut (because this would have a domino effect of also overturning Roe and Lawrence)
3. Baker v. Carr
4. Levy v. Louisiana (the worst-written opinion I have ever seen)

[MarkD]

My list of all the things that are wrong with the Levy opinion goes on and on and on. Justice Douglas was making a fool of himself and five of his colleagues on the Court. I'm astonished that Chief Justice Warren would allow that "extraordinarily sloppy" opinion to be published as an official opinion of the Court. (That quote is from Prof. Lawrence Lessig, in a Fordham Law Review article published about 20 years ago. That is, Lessig was the one who called the Levy opinion "extraordinarily sloppy.") I could either list everything that's wrong, or I could just describe two or three of the worst things about it.

[MarkD]

1. Buckley v. Valeo (+ Citizens United v. FEC)

• While money is used to finance speech, money isn't speech (plain & simple). Those financial activities shouldn't receive precisely the same constitutional protections as speech itself. After all, campaign funds were used to finance the Watergate burglary. However, the Court's central errors on campaign finance stem from the 1976 Buckley v. Valeo ruling, which denied Congress the right to impose limits on campaign finance, a provision that should be overturned.

If you want to overturn these decisions by adopting a constitutional amendment that says Congress and the states may regulate campaign finances as much as they wish, then I completely agree. If you want to overturn it by having a "litmus test" for appointments to the Supreme Court - whoever gets appointed must be dedicated to overturning these precedents - like Hilary Clinton and Bernie Sanders have said they want, then I am adamantly opposed. The foremost important quality that should be looked for in an appointee to the Court is objectivity. Lord knows there have not been anyone appointed for that reason in too many decades.

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Is that what the Supreme Court said? That money is speech? I have not read all of the Buckley opinion and none of the Citizens United opinion, so I don't know if that is what they said. The excerpt of Buckley that I have read did not say money is speech, it said money is necessary in order to campaign for most elected offices. I suppose a person could get elected to the state House of Representatives in a few states without any campaign funds, the fact plainly is that most people who run for an office need campaign funds in order to have any hope of getting elected. Yard signs are not printed for free; campaign literature is not printed nor mailed out for free. Newspaper ads, radio ads, and TV ads are not free. When a government limits the amount of money spent on campaigns, it limits the amount of campaigning a candidate can do. That doing so abridges the freedom of political speech -- the most important kind of constitutionally-protected speech that there is -- is pretty obvious to me.
Hypothetical: suppose Congress passes a law, that the POTUS signs, prohibiting all of the churches in the country from spending any more than $X on the construction of chapels. One of the effects of the law is obviously going to be that chapels will have a limited capacity; they can't get any bigger than a certain size. If the size of the chapel is limited, then the size of the congregation is limited too. Wouldn't that abridge the free exercise of religion?
Similar hypothetical: suppose Congress passes a law, that the POTUS signs, limiting the amount of money that any journalistic enterprise may use for the funding of investigative journalism. Wouldn't that be a violation of the freedom of the press?

So I understand why the Supreme Court came to the conclusions that it did in Buckley, Citizens United, and other lesser-known precedents in between which struck down laws that restrict campaign expenditures. I understand and I don't have a complaint how the Supreme Court did its job. But again, I do believe it is time to adopt a constitutional amendment that effectively overturns those decisions. Doing so means we will be making an exception to the principle of freedom of speech. We have the prerogative to do that; the Supreme Court was not obligated to make an exception.

[MarkD]

Well, here's one fallacy to start with.

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I'm one of the last people to try to suggest that the Supreme Court is always right to say whatever it says. I have been suspicious of the Court since I was 16 years old. Starting when I was 26 years old I began intensely studying how the Supreme Court interprets many (not all) clauses in the Constitution. I found out that the Court has indeed made many wrong decisions, and has often interpreted certain clauses in ways far beyond what the clauses were intended to mean. But I don't think that Buckley or Citizens United are examples of the Court making an error, not in terms of interpreting the Constitution. And I don't think I implied that whatever the Court says is an accurate interpretation of the Constitution; I was asking a previous poster whether the Court has ever actually said that money is speech.

According to you, because of the Court's

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How so? Because a big campaign contribution works effectively as a bribe? That's a pretty common accusation that gets made by people who support campaign finance reform: financially helping a candidate is the moral equivalent of bribery. It's a popular, and populist, theory. I don't buy into that theory, and I understand why the Court did not do so either. But your theory is what: that when a wealthy businessman like Shaun McCutcheon contributes millions of dollars to various politicians around the country, he is effectively trying to coerce those politicians into doing legislative things that the politicians who received the money did not want to do, and/or their voters do not want them to do? Mr. McCutcheon was trying to financially help many candidates to campaign -- to try to persuade voters to "vote for me (the candidate)." The people who spend the most money do not always win the elections, and I simply do not see how contributions make the contributors more important to the politicians than the voters.

Not a fallacy:

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I agree that CJ Roberts said something that is misleading. Voting is the participation in the electing of leaders. Financially contributing to a campaign is not the same thing as voting. It is the same thing as contributing to political debate, though. Those contributions are not as powerful as voting itself, so it was misleading.

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I disagree that adopting a constitutional amendment to say Congress and the states may regulate campaign financing is to adopt something that is already in the Constitution. It would be a first-time ever exception to the principle of Freedom of Speech. I am ready to adopt that. I also disagree that money is drowning out the votes of actual U.S. citizens; see above.

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Yes. People should be appointed to the Supreme Court for reasons exactly like the reason why Herbert Hoover crossed party lines and appointed Benjamin Cardozo to the Supreme Court. The Court is supposed to be made up of the nine most highly objective interpreters of law that can be found anywhere in the country, and I do not think it wise to choose someone because that person thinks Citizens United was a disaster. That person is highly unlikely to be objective.

[MarkD]

We're doing well enough to find some areas of agreement, and we know we're headed to the same destination, even if we're not aiming for that destination for same reasons.
I support amending the Constitution to allow any level of government to regulate campaign financing all the government wants to, with no oversight by courts exercising judicial review in the name of the principle of Freedom of Speech. We know we both want that. I support it because I see something very wrong and gross with how expensive it has become to run for office; because the popular, populist suspicion that politicians are being "bought" by big-money interests - even indirectly through an independent campaign expenditure - is eroding public confidence in our republican form of government.

Adopting this amendment is not my most important priority, but whenever it comes time to add my "two cents" to a debate about this, I will continue saying that I support it.

[MarkD]

Surprised nobody brought up U.S. Term Limits v. Thornton

Probably because that case was obviously rightly decided and even most supporters of congressional term limits recognize that that requires a Constitutional Amendment.

[MarkD]

No particular order, but:

Bush v. Gore
McCleskey v. Kemp
Heller v. District of Columbia
Shelby County v. Holder

Lewis Powell told his biographer that if he could change one of his votes in a case, he named McCleskey v. Kemp

I can't think of any reason why the Court's decision in McClesky was wrong. I see a lot of similarity, in legal reasoning, between the decision there and the decision in Washginton v. Davis, 1976 (decided by 7 to 2). The similarity is that, in both cases, the Court does not accept an imperfect generalization about race as proof that a law/policy was adopted with an intention to discriminate on the basis of race. Just like imperfect generalizations -- stereotypes -- are not acceptable excuses for deliberately treating the races differently from one another, imperfect generalizations are also not accepted as proof that a law/policy is racially discriminatory. I call it an imperfect generalization because the Baldus study did not prove that all blacks accused of murder are sentenced to death while no whites are ever sentenced to death; he only proved that, proportionally, blacks are sentenced to death more often than whites. Likewise, in Washington v. Davis, the Court majority did not accept that a statistical disparity between how often blacks who took a certain screening test failed the test compared to how often whites failed the same test as proof, in and of itself, that the test was racially discriminatory.