The Eleventh Amendment Movement, or TEAM, is a group specifically dedicated to preventing the Supreme Court from asserting jurisdiction in the Montana case of American Trading Partnership v. Bullock on the ground that it would constitute a violation of the Eleventh Amendment, as the name implies. They issued two important press releases this week that are worth looking at together.
The first press release was issued on Monday, June 18, and it was delivered as a piece of good news. The first three paragraphs said it all:
The U.S. Supreme Court surprised most Court observers on Monday by delaying an order in a case involving the state of Montana and Citizens United, their controversial 2010 ruling that allows for virtually unlimited corporate spending in state elections.
The Court was expected by many to issue an immediate decision of “summary reversal” in the case American Tradititon Partnership v. Bullock that would uphold Citizens United and strike down a 2011 Montana court ruling that enforced that state’s anti-corruption election finance laws in seeming opposition to the federal mandate.
The Court still has three options available at its June 21 Conference: 1) summary reversal, 2) accepting the case for a full hearing later this year, or 3) refusing jurisdiction to make any decision about the case at all, in which event Montana would win immediately and their state laws would stand and Citizens United would be effectively reversed.
To paraphrase a famous movie: you keep mentioning the Eleventh Amendment — I do not think it means what you think it means. Yes, if the Court refused jurisdiction, the Montana State Supreme Court ruling would stand and Citizens United would be effectively neutered at the State level but only on jurisdictional grounds. Even if that is the outcome of this delay, which is dubious at best (we’ll see why next), it would have no effect on federal law, such as McCain-Feingold, and be only a temporary technical win for the states until the next corporate front group designs another piece of First Amendment bait to dangle in front of the Roberts 5 that bypasses Eleventh Amendment considerations entirely.
The second press release was issued on Tuesday, June 19th, and this time, the news was not so good. Again, the first three paragraphs summed things up:
The U.S. Supreme Court has materially altered case documents in a way that may indicate Court bias. The change could directly affect the outcome of a high-profile case involving the state of Montana and Citizens United, the Court’s controversial 2010 ruling that allows for virtually unlimited corporate spending in federal elections.
According to a report published Thursday at the Huffington Post website, a February 17 Stay Order in the case of American Tradition Partnership v. Bullock was issued upon referral by Justice Anthony Kennedy. This Order contained a significantly changed caption (the title that names the parties in the case) from the caption that the parties used in the original application and response documents filed on February 9 and 15, respectively.
Both the official Court docket and the archival SCOTUSblog confirm that the earlier documents in question named the defendants as “Attorney General of the State of Montana, and Commissioner of the Commission for Political Practices, Respondents.” The later Court Order changed the named defendants to “Bullock, Attorney General of Montana, et al.”
And by so doing, drew up a new play to do an end-around the Eleventh Amendment jurisdiction issue and allow the Supreme Court to assert authority after all. And this is why trying to use logical, legal, Constitutional arguments and theories to understand the Roberts 5 is a waste of time. There are no logical, legal, Constitutional reasons for them to do anything they do. Three out the five were on the Court and in the majority on Bush v. Gore, one of the new guys is the ringleader and the other is the guy that muttered under his breath at the State of the Union address, the first Justice ever to break decorum. These five corporate tools are an anti-democratic cabal whose only use for the U.S. Constitution is how it can be leveraged to produce the outcomes demanded by their corrupt ideology, which is not conservative. It’s corporate.
It doesn’t matter that the majority treats unions the same in their poorly disguised “First Amendment” rulings — labor is being dismantled in other ways and even at their height could never hope to compete with the corporate treasuries controlled by management. Anyone see unions enjoying the kind of protections that matter in this fight? Have you been able to catch any union ads between the non-stop corporate barrage? Just because the elite are going after teachers today, doesn’t mean it won’t be cops when the teachers are no longer a problem. Unions are not all liberal by default and this isn’t a left/right issue anymore. This is an up/down issue, a matter of a select few using the Supreme Court to legalize their monopoly over our most important liberties.
These people know what they’re doing and they have a plan. We have to stop underestimating the penetration of corporate corruption in the judiciary. Everyone gets it when it comes to Congress and executive branch bureaucrats, but too many people still believe that most of the decisions produced by a court system packed with and bombarded by corporate lawyers are deliberated in good faith. They aren’t. And even if the best of the three possible outcomes identified by TEAM comes to pass, this fight will be far from over.