Bench Memos

Leahy’s Syllabus of Errors, Part 2

In an earlier post I pointed out the errors in Senator Leahy’s criticism of some recent Supreme Court decisions: They boil down to frustration that the Court was actually applying the law rather than amending it as Leahy would have done. Here’s a look at the other two cases in which Leahy claims the Court “rewrote the law.”

3. Exxon Shipping Co. v. Baker (2008).  Leahy called this decision a “$2 billion windfall” for ExxonMobil. But is it fair to call it a windfall when a corporation merely gets its own money back? Because that is precisely what happened here. After the Valdez spill, Exxon was required to pay billions for the environmental cleanup and associated harms. Make no mistake, the Baker Court did not cut Exxon any slack on those awards.  It did, however, reduce the largest punitive damages award in history that was assessed against Exxon, hence the $2 billion “windfall.” The decision was 5-3, with Justice Souter — hardly a conservative ideologue — writing the opinion. And since the Court was interpreting federal maritime common law, there wasn’t even a statute for the court to “rewr[i]te” as Leahy charged. Again, if you don’t like the law, Senator, you are uniquely positioned to change it.

 

4. Citizens United v. Federal Election Commission (2010).  Leahy’s analysis of this case is that the court “rewrote the law to say that corporations could come in and meddle in elections.” In the words of Ronald Reagan, there he goes again. Although Leahy finally found a case where the Court, in a sense, “rewrote” a law by striking down a portion, the question is whether it was being true to the Constitution when it did so.  Even liberal apologist Linda Greenhouse admits that the McCain-Feingold provision at issue in Citizens United “was a constitutional accident waiting to happen — it was overly broad and cut off too much legitimate speech.” That provision would have criminalized, as a felony, all sorts of election-related speech by any corporation, including nonprofits, within 60 days of an election. That means a cornucopia of issue groups — like the Sierra Club, the National Rifle Association, AARP and the ACLU, as well as unions — couldn’t encourage their own members to vote according to their issues of choice, even without referencing candidates’ names and positions. As the Chief Justice’s opinion pointed out, the dissent’s logic would even sanction blocking corporate-owned newspapers from running op-eds and editorials in support of candidates.  If that doesn’t violate the First Amendment, I don’t know what does.

 

Senator Leahy’s hyperventilations reveal the true credibility gap: On the one hand, he wants the Supreme Court to rewrite laws he thinks were not written liberally enough by Congress the first time around; on the other, he doesn’t want a Court that will stand up to a Democratic Congress when it comes to reviewing its statutes for compliance with the Constitution. Little wonder. From bailouts to buyouts to the health-care overhaul, Congress and the President have stretched the Constitution beyond its limits and the Supreme Court will soon have to rein them in. Which is why Leahy doesn’t really want a court full of independent judges, but a rubber-stamp that will let Congress do whatever it likes.

  — Carrie Severino is chief counsel of the Judicial Crisis Network.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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