Private: Not where he said it, but what he said: Alito’s Distaste for Government, and Support of Corporate Interests

by Jeremy Leaming

It’s not where he said it; it’s what Supreme Court Justice Samuel Alito had to say about the ruling in Citizens United and the role of the federal government that warrants any kind of notice.

Alito has long been defensive of the high court’s handiwork in a decision that gave more power to corporate interests to spend their expenditures on politicking. That 2010 high court opinion in Citizens United v. FEC overturned longstanding court precedent allowing for some regulation of campaign financing by corporations. During the 2010 State of the Union address, President Obama blasted the Court for trampling that precedent and added that it would become a boon for special interests, including foreign ones, and Alito was caught on camera uttering, “Not true.”

Recently the severely conservative judge (he was far right as a judge on the U.S. Court of Appeals for the Third Circuit) again sounded a defensive note on Citizens United before the Federalist Society’s 2012 National Lawyers Convention. Alito, as reported by the Associated Press, said all kinds of newspapers and television news and opinion broadcasts, many owned by vast corporate interests, sound off on and provide endorsements of candidates.

“The question is whether speech that goes to the very heart of government should be limited to certain preferred corporations; namely media corporations,” Alito said during a keynote address at the group’s 30th Anniversary Gala Dinner on Nov. 15. “Surely the idea that the First Amendment protects only certain privileged voices should be disturbing to anybody who believes in free speech.”

Beyond defending the opinion, and shooting a few asides at critics of the opinion, Alito sounded what is a frequent Tea Party or rightwing talking point about ever-expanding powers of the federal government, saying that the views advanced by the administration in several cases before the high court revealed a vision of a society dominated by a towering federal government.

That Alito continues to defend the wretched majority opinion that is Citizens United is not surprising or all that newsworthy. His aping of rightwing talking points of a growing, tyrannical federal government more noteworthy for it reveals he’s not moved an inch from his stubbornly far-right view of government.

But some public interest groups like the Alliance for Justice, with whom ACS works on many issues and causes, blasted Alito for speaking at the Federalist Society gathering, claiming the justice had shown “insensitivity to the need for a justice’s ethical behavior to be above reproach ….”

It, however, should be noted that the Federalist Society gathering was no political fundraiser. The Federalist Society is not the rightwing rag, The American Spectator, which Alito has helped raise money for. Nor was the Federalist Society’s gala dinner akin to a secret Koch brothers’ Tea-Party funding raising event that Justices Antonin Scalia and Clarence Thomas attended in fall 2010.   

As Federalist Society CEO Eugene Meyer told the AP, its annual gala dinner is not aimed at raising money. In fact, he said “we lose money on every meal we serve.” The Society, like other legal organizing and networking groups, such as ACS, does hope to educate, enlighten, and engage their supporters. One way to do that is to have prominent jurists speak to it members and supporters. Justice Ruth Bader Ginsburg provided a relatively enjoyable and insightful address at the ACS 2012 National Convention, which is also not a fundraiser. It is instead an effort to strengthen, enlighten, and engage the organization’s network.

The justices should not remain cloistered in the Supreme Court building; indeed they ought likely to get out a tad bit more, unless it’s for a duck-hunting trip with a person who is involved in a case before the high court. What they also should avoid is taking positions on cases before them or joining in political planning strategies, like ones conducted by the Koch brothers.

Indeed the 2011 Alliance for Justice film, “A Question of Integrity: Politics, Ethics, and the Supreme Court,” provided an examination of the public role of the justices.

In that film, New York University School of Law Professor Stephen Gillers said “it is a good thing for judges to speak even to ideological organizations. So when Justice Scalia goes to a Federalist Society or another justice goes and speaks at a progressive organization, I think it’s good, depending on what they say.”

Campaign Finance, Constitutional Interpretation, Supreme Court