November 10, 2013

Former Chief Justice George is not a fan of SCOTUS election law jurisprudence

California chief justices are obviously not shy about criticizing their colleagues on the United States Supreme Court.  Last month, as noted, Chief Justice Cantil-Sakauye praised the dissent from the majority opinion in Hollingsworth v. Perry, where the United States Supreme Court held that proponents of Proposition 8, the anti-same-sex-marriage ballot initiative, did not have standing under federal law to defend initiatives in court.  Now comes retired Chief Justice George’s memoir — published last week — with disagreements about high court precedent, particularly in the field of election law.

George’s book might not include headline-grabbing revelations like Judge Posner’s latest work, which included back-tracking on a key opinion Posner had authored upholding a voter identification law.  But the criticisms are noteworthy nonetheless, including his comments about Bush v. Gore and Citizens United v. Federal Election Commission.

George is apparently not in the “get over it” school on Bush v. Gore, calling it an example of judicial activism because the Court “arguably ignored” the principle about “avoiding political issues.”  (He notes it’s not an absolute principle, because he thinks that “Baker v. Carr was probably absolutely necessary.”)  He also says that the case is “a one-time decision that in the views of some commentators is probably destined never to be cited as authority or precedent for anything.”

Citizens United, according to George, is an example of “the sometimes unfortunate act of reaching out to decide issues that were not raised by the parties.”  He says the Court “not only reached issues that the parties had actually sought to avoid but ruled on constitutional issues when it could have ruled for the prevailing party on much narrower grounds.”  Additionally, he notes, the Court “overruled a recent precedent without the customary justification that’s invoked when this somewhat radical course is taken.”

But George is critical of the substance as well as the process.  “The most disturbing aspect to me” of the Citizens United opinion, he says, “is the basic effect of opening the floodgates to corporate donations with the resulting impact on the public’s exercise of its right to vote.  It is still their own vote — but if there’s a deluge of expensive advertising on one side, that’s likely to have an impact.”  He is also concerned that, “with corporations crossing national boundaries and having subsidiaries and parent corporations, it is quite possible — and not unreasonable to anticipate — foreign corporate money being used to affect elections in the United States.”

His greatest fear about Citizens United, however, is its “potential to be devastating in judicial elections.”  That opinion, together with Caperton v. A. T. Massey Coal Company, Inc. (which George says illustrates “the willingness of a corporate entity to throw millions of dollars into a relatively small race for one Supreme Court position in a small state”) and Republican Party of Minnesota v. White (which he says allows judicial candidates to “announce[ ] . . . preconceived views” about issues that will come before them as judges), creates “the perfect storm — a true danger posed to judicial independence, to fairness and integrity in our state courts.”  In short, he blames the United States Supreme Court for “facilitating” the “increasing efforts of special interests to buy seats on state supreme courts and lower state courts.”

Leave a Reply