Bench Memos

The Reckless E.J. Dionne

In this morning’s Washington Post, E.J. Dionne has a fairly run-of-the-mill liberal diatribe about the awfulness of the Supreme Court’s January 2010 decision in the Citizens United case, which overturned part of the McCain-Feingold “campaign finance” legislation.  According to Dionne, the ruling was “one of the most naive decisions ever rendered by the court.”  He has, of course, not a paragraph–a sentence–even a clause–attempting to criticize the Court’s reasoning about the First Amendment.  Dionne is exercised about the results, which he regards as very bad (what with those “Super PACs” funded by gazillionaires and all that), and entirely predictable (and thus sufficient reason for the Court to have decided the other way, regardless of what the First Amendment might be most fairly interpreted to mean).  Not liking the results, he is sure that the decision can be called “activist” (a label that never emerges from his typing fingers when discussing rulings with liberal results, but you knew that already), and “legislating from the bench” (ditto).

All this is so much of the usual blather that one could turn the page in boredom and miss what is really eyebrow-raising about Dionne’s column.  Here it is:

But ascribing an outrageous decision to naiveté is actually the most sympathetic way of looking at what the court did in Citizens United. A more troubling interpretation is that a conservative majority knew exactly what it was doing: that it set out to remake our political system by fiat in order to strengthen the hand of corporations and the wealthy. Seen this way, Citizens United was an attempt by five justices to push future electoral outcomes in a direction that would entrench their approach to governance.

In fact, this decision should be seen as part of a larger initiative by moneyed conservatives to rig the electoral system against their opponents. . . .

Got that?  In mid-column, Dionne reverses field.  Citizens United should not be seen as a “naive decision” by a Court too wedded to erroneous interpretations of the First Amendment to see the ill effects of its ruling.  No, there’s “a more troubling interpretation” of the decision, and Dionne doesn’t simply offer it as an alternative, for in the next paragraph he says Citizens United should be seen this way.  And that darker view is that the “conservative” justices actually want to engineer certain electoral outcomes that favor “corporations and the wealthy,” and presumably the Republican Party, while disadvantaging the poor and the middle class, and presumably the Democrats.  This will “entrench their [i.e., the justices’] approach to governance”–whatever that is.

One need not be a defender of Citizens United to find this an absolutely appalling canard, more suited for the fever-swamp blogs of the left than for a columnist in a respected national newspaper.  Let me restate this so no one will misunderstand.  E.J. Dionne evidently believes that Chief Justice John Roberts, and Justices Scalia, Kennedy, Thomas, and Alito are not only wrong about the principles of the Constitution.  Dionne thinks they know they are wrong, and that they are willing to pretend that the Constitution means something it doesn’t, in order to give electoral advantage to corporations and fat cats.  He is, in short, accusing them of violating their oaths, traducing the Constitution, and betraying their country for the lowest of reasons–mere partisan political advantage for people whose interests attract their sympathy, for reasons unexplained other than that the justices have some “approach to governance” that will be “entrenched.”  If he had a shred of evidence for such a wild accusation, he would, I suppose, produce it.  He has not produced it, and he cannot.  If he were right, the five justices in the Citizens United majority would have committed an impeachable offense.  Since he is wrong, it is E.J. Dionne who has impeached himself.

Now perhaps in Dionne’s defense it might be said that he doesn’t really mean to accuse anyone of having really acted in bad faith–that in the steady drumbeat of writing columns on deadline one will sometimes get careless–that this sort of thing is more common now in the wild, wild West of the blogosphere, so what’s the big deal–that he was just throwing red meat to his friends in the left-wing law faculties.

In that case, I would accept without further question Dionne’s withdrawal of what stands, as of now, as a foul calumny on honest public servants.


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