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Missing the Tea Party—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on February 25, 2010.

Missing the Tea Party
By Linda Greenhouse ’78 MSL

The real surprise of the Supreme Court’s decision in Citizens United v. Federal Election Commission, which magnified the ability of corporations to spend money in political campaigns, is how widely disliked the ruling is across the ideological spectrum. After more than a month, the storm set off by the Citizens United ruling is still raging.

In one poll released this month, 56 percent of Republicans who voted for Republican candidates in 2008 said they opposed the decision, while only 33 percent favored it. Another poll revealed that almost as many Republicans opposed to the ruling (76 percent) as Democrats (85 percent.)

Fueling the Citizens United storm, it would appear, are the winds of populism. And given the widespread public distaste for bailouts and bonuses, the court’s timing was awkward, to say the least. Chief Justice John G. Roberts Jr. and the four others in the majority — Justices Anthony M. Kennedy, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. — now look like the only friends that corporate America has left. Just when conservatives have finally assembled a dream team of like-minded Supreme Court justices, the court has missed the Tea Party.

I’ve been traveling a good deal during the past month, and everywhere I’ve gone, people have expressed shock that the Supreme Court could have deemed corporations to be “persons,” entitled along with the rest of us to the First Amendment right to free speech. Yet the concept of corporate personhood for certain constitutional purposes is not an invention of the Roberts court; it dates to the 19th century. And the Supreme Court has been giving increasingly robust protection to the rights of corporate and other commercial speakers for decades. Seen in this light, Citizens United, which overturned a provision of the McCain-Feingold campaign finance law that curbed corporate spending on television advertising for or against identified candidates in the weeks leading up to an election, was not so much a sharp break with the past as the culmination of long-running trends.

No matter. The decision, its visibility enhanced by President Obama’s public rebuke of the court during the State of the Union speech last month, is obviously serving as a wake-up call, prompting many people to pay attention for the first time to those very trends. Clearly, they don’t like what they see. One question is whether disaffection with a particular decision will translate into a more general disaffection with the court itself.

The last decision to provoke such a strongly negative public reaction was Kelo v. City of New London, the 2005 eminent domain decision that interpreted the Fifth Amendment’s “takings” clause to permit governments to condemn private property and transfer it to other private owners — typically, corporations — for the purpose of economic development. Polls indicated that 80 percent to 95 percent of the public, across every political and demographic group, opposed the decision. Activists announced plans to take the New Hampshire farmhouse of Justice David H. Souter, who had voted with the 5-to-4 majority, and turn the property into the “Lost Liberty Hotel,” with a copy of Ayn Rand’s “Atlas Shrugged” to be placed on the nightstand in every guest room.

That was a prank, of course. But the populist tide was beginning to run, even back then. Within months, proposals to curb the use of eminent domain were being considered in nearly every state legislature and within two years, 31 states had enacted anti-eminent domain legislation of varying degrees of effectiveness.

A major difference between the Kelo decision and Citizens United, of course, is that in the first case, the court was enabling elected legislatures to do what they wanted to do, leaving them free to continue with economic development policies or to stay their own hands. In Citizens United, by contrast, it was the court that tied the legislature’s hands, declaring an act of Congress unconstitutional and taking away a tool that had appeared to offer some hope of restraining the flood of money into politics. That the provision had been only marginally effective, if that, in achieving that goal is less important than the narrative now growing up around Citizens United and rapidly taking on a life of its own, almost independent of what the court actually held.

Although undoubtedly spontaneous to some degree, the narrative is taking shape under careful cultivation. The Democratic Senatorial Campaign Committee, under the heading of “Citizens Before Corporations” on its Web site, is asking supporters to sign a petition “demanding that Republicans support legislation to reduce runaway corporate spending on elections.” The site is illustrated with a mock newspaper headline that reads, “Court Rolls Back Decades of Reform: Dems Vow to Fight for Citizens; G.O.P. Sides with Corporate Money.”

At the time, I thought President Obama’s lecture to the robed justices seated before him in the House chamber for the State of the Union speech was a miscue. But in retrospect, it looks like a well-considered move to enable the administration to catch the populist wave and ride it, perhaps into the next Supreme Court vacancy and beyond.

Since the era of the Warren court and its revolutions on questions of race and of the rights of criminal defendants, Republicans have run effective campaigns against the Supreme Court, something Democrats have never managed to do. That is because the court, centrist by institutional nature, has not given the Democrats much of a natural target; when it ventured from the center, it usually strayed to the left, at least in high-profile cases involving social issues. The Roberts court is arguably in the process of reversing that polarity, tacking to the right of public opinion’s mainstream — but it had not yet tacked far enough to arouse much reaction.

Until now — a fascinating moment, with the drama playing out unexpectedly not along the usual left-right axis but rather as the people versus the elite. At last week’s Conservative Political Action Conference, Gov. Tim Pawlenty of Minnesota railed against “the elites and the pundits” who dismiss members of the Tea Party movement as “bumpkins” because “a lot of them didn’t go to the Ivy League schools” and are “from places like the heartland.” Let’s see: can anyone think of a group of nine people, four of whom hail from New York or New Jersey, two from California, and eight from the Ivy League?