Serious Questions for Samuel A. Alito Jr.
Will Senate Judiciary Committee members ask Judge Samuel A. Alito Jr. bedrock but nervous-making questions about corporate personhood that they did not ask--or were too timid to ask--of Judge John G. Roberts Jr.?
The questions spring from two primary sources:
A dissent by Roberts's immediate predecessor as Chief Justice of the United States, William H. Rehnquist, that's been widely--and conveniently--ignored for a quarter-century, even in the eulogies attending his death. It came in a 1978 Supreme Court case titled First National Bank of Boston v. Bellotti. By a vote of 5 to 4, the Justices decided that banks and business corporations--just as flesh and blood like you and me--have a First Amendment right to spend their money to influence elections.
Section 1 of the Fourteenth Amendment: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Before Harriet Miers made way for Alito by withdrawing her nomination, The Nation posted an article in which I urged Committee members to pose questions about corporate personhood to President Bush's initial choice to succeed Associate Justice Sandra Day O'Connor.
Here are the same questions, somewhat revised, for Bush's new nominee:
1. In his dissent in First National Bank of Boston, Chief Justice Rehnquist wrote of corporations: "It might reasonably be concluded that those properties, so beneficial in the economic sphere, pose special dangers in the political sphere." Do you believe that corporate money in our elections poses "special dangers in the political sphere"?
2. The late Chief Justice went on to write: "Furthermore, it might be argued that liberties of political expression are not at all necessary to effectuate the purposes for which States permit commercial corporations to exist." Do you believe that "liberties of political expression" are necessary "to effectuate the purposes for which States permit commercial corporations to exist"? Do you believe that money is speech? Or is it property?
3. The Chief Justice also said: "I would think that any particular form of organization upon which the State confers special privileges or immunities different from those of natural persons would be subject to like regulation, whether the organization is a labor union, a partnership, a trade association, or a corporation." In plain words, he was saying that the state, having created the corporation, can regulate the corporation. Do you agree?
4. The Fourteenth Amendment was adopted in 1868, soon after the end of the Civil War. Was the "person" whose basic rights the Framers and the people sought to protect the newly freed slave? Was the person a corporation? Are corporations "persons born or naturalized in the United States"?
5. "[W]hen the Fourteenth Amendment was submitted for approval, the people were not told that [they were ratifying] an amendment granting new and revolutionary rights to corporations," Justice Hugo Black wrote in Connecticut General Life Insurance Co. v. Johnson in 1938.
"The history of the Amendment proves that the people were told that its purpose was to protect weak and helpless human beings and were not told that it was intended to remove corporations in any fashion from the control of state governments," Justice Black wrote. "The Fourteenth Amendment followed the freedom of a race from slavery.... Corporations have neither race nor color.")
In proclaiming a paper entity to be a person, was the Court faithful to the intent of the Framers of the Amendment and to the intent of the people who ratified it?
6. In 1886, only eighteen years after the people ratified the Fourteenth Amendment, the Supreme Court had before it Santa Clara County v. Southern Pacific Railroad. The issue was whether the Amendment's guarantee of equal protection barred California from taxing property owned by a corporation differently from property owned by a human being. Chief Justice Morrison Waite disposed of it with a bolt-from-the-blue pronouncement: "The Court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a state to deny any person the equal protection of the laws, applies to these corporations. We are all of the opinion that it does." How would you characterize the Court's refusal to hear argument in a momentous case before deciding it?
Would you describe the Court's decision in Santa Clara County as conservative? As radical?
7. By contrast with the Court that decided Santa Clara County, the Court decided Roe v. Wade, in 1973, only after being fully briefed, hearing oral argument and deliberating at length. Nonetheless, Judge Robert Bork famously denounced the decision as "a wholly unjustified usurpation of state legislative authority."
Without regard as to whether Roe v. Wade was rightly or wrongly decided, was Santa Clara County "a wholly unjustified usurpation of state legislative authority"?
8. Again, without regard as to whether Roe v. Wade was rightly or wrongly decided, how does it strike you that the Court has declared a corporation--a paper entity that is neither born nor naturalized--to be a person but has declared a fetus not to be a person?
Corporate money and power have all but overwhelmed America's governance and politics, and it's not just "conservatives" who prefer not to ask questions involving the corporation as a person. "Liberals" are equally skilled at dodging the subject. So are lawmakers, and whether they are Democrats or Republicans matters not. Perhaps most unfortunately, the Senate Judiciary Committee has a long bipartisan tradition of ducking the issue when it considers judicial nominees, not just for the highest court in the land but for the lower courts as well.
This time around, will a Committee member break the mold?
Don't bet on it.