multitude of gross errors in the ruling by the Supreme Court 5
(Roberts, Kennedy, Alito, Scalia & Thomas) to turn corporations into
super citizens. The first alert addressed their constructive treason
in expressly empowering foreign corporations to speak in our
elections, the second vivisected their haste and derelict abandonment
of all prudent procedure.
Be sure to submit the two action pages on this issue from which we
are just starting to build the movement and political will to
repudiate the rogue Supreme Court 5.
Action Page: Corporations Are NOT The People
Action Page: Impeach The Supreme Court 5
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from one of the pages above to place a button to help us give away
bumper stickers to protest this hideous injustice.
This third installment will demonstrate their ad hoc prestidigitation
of findings of fact on which to ground the opinion. Again we will
reference specific page citations to the actual opinion, together
with our review of all the legal filings in this case, including the
so-called "amicus" (friend of the court) third parties, and the
transcript of the oral argument, itself telling in many ways.
We had already pointed out that Kennedy, writing for a skin's teeth
of a majority, plowed ahead without sending the case back down to the
lower court for the development of a factual record on the issue THEY
wanted to rule on (in a predetermined and unprecedented way as it
turns out). Instead he conjured facts out of thin hot air to justify
his holding, and we will have to play detective somewhat to figure
out where this factual garbage even came from.
Critical to Kennedy's justification for why corporations should for
the first time be awarded the right to spend unlimited amounts of
money to tilt the tables of our elections was the finding, as a
matter of fact, that existing PAC (political action committee)
alternatives were too BURDENSOME and suppressive of this magical new
corporation free speech right to drown out the voice of actual
citizens in our elections. (opinion pp. 21-22).
And as support for this sweeping and totalitarian assertion of
factual reality, what source does Kennedy lean on?? Why, little more
than his OWN DISSENT in the one of very Supreme Court cases
(McConnell) this opinion revisits and overrules (so much for respect
for stare decisis), where HE made that assertion in DEFIANCE of the
majority ruling in that case. Again here, he just recites his
personal grudge list of the cruel and unusual (in his opinion) filing
requirements for PACs, absent any determination by any trier of fact
(besides his absolute self) that these requirements are per se
Oh, but it gets worse. For you see, no actual party to this
litigation made any such factual claim that we can find in the record
on appeal. Instead, in this part of the opinion Kennedy is just
essentially regurgitating verbatim the ARGUMENTS of one of the THIRD
PARTY amicus briefs!! (opinion p. 22) What he did here was take the
assertions of a non-party in a tangential filing, the ONLY one to
make such arguments, totally after the fact of anything tried in the
actual case, and he elevated those arguments to the pedestal status
of a complete factual record from the court below.
How much more offensive to any sense of judicial fair play could it
possibly get? The point of a TRIAL is to take testimony, to try
factual assertions in the crucible of a fact finding court, to have a
judge determine based on a full and fair record what facts are to be
given weight, with both parties given an opportunity to present any
relevant evidence. But in our new Supreme Court of the Five
Kangaroos, they can sit as judge, jury and executioner of all facts
without any such procedural fairness, and based on their OWN
To her credit, in oral argument Justice Sotomayor attempted to
address the fact that the Court appeared to be bent on proceeding in
the absence of an adequate factual record on the issue it purportedly
was to decide (oral argument p 25, lines 12-22). Here was attorney
Ted Olsen's response to her question.
"It is the government has the burden to prove the record that
justifies telling someone that wants to make a 90-minute documentary
about a candidate for president that they will go to jail if they
broadcast it. The government has the obligation and the government
had a long legislative record and plenty of opportunity to produce
that record and it's their obligation to do so." (oral argument p.
25, line 25 - p. 26, line 7, and please take careful note of Olsen's
unbelievably snaky reference to a "legislative" record, as contrasted
with a FACTUAL record by trial in a lower court, and his inflammatory
use of the word "jail").
Where did this guy get his law license ... out of a cereal box??
In the first place, the government was not the "plaintiff" (the one
bringing the case) here. The government was not prosecuting a case
here to put anybody in jail. The plaintiff in this case was so-called
Citizens United, both on appeal and in the court below. In our system
of justice the plaintiff is ALWAYS the one with the burden of proof,
and where, as here, they ABANDONED the issue that the Supreme Court 5
raised from the dead by a wave of their unilateral godlike hand,
there was NO requirement for the government to make a case to the
contrary. Indeed, on the issues that WERE tried below, the government
DID develop whatever factual record was necessary to win, even by the
biased standards of this Supreme Court (opinion p. 10).
What kind of integrity challenged advocate would try to throw the
obligation of proof back on the defendant so long after the fact of
an issue waived?
And what kind of dishonest Supreme Court would try to pass off as
justice such a short shrift of a factual record? Kennedy asserts in
the opinion that it's really all OK because in one of the stare
decisis cases (which they are REVERSING) there was a record of
100,000 pages on roughly the same issue (opinion p. 15), so they can
rely on that, totally disregarding that THAT case ruled AGAINST
Kennedy's zombie proposition. What has changed? Nothing has changed
but an additional right wing drop kick ideologue on the court to vote
to take the SAME facts and arrive at the diametrically contrary
result many years later. 100,000 pages of record that went the other
way against a new record in this case of ZERO pages. Some record!
It just so happens that Anthony M. Kennedy is the LAST person who
should ever be allowed to make a finding of a fact about anything in
the real world, let alone from the bench of the Supreme Court.
Consider this pearl of cave dwelling mentality from his mouth in the
oral argument, in defense of the admittedly ad hominem corporate hit
piece about Hillary Clinton in this case.
"But, No. 1, the phenomenon of -- of television ads where we get
information about scientific discovery and -- and environment and
transportation issues from corporations who after all have patents
because they know something, that -- that is different." (oral
argument, p. 73, lines 5-10)
Oh sure, that's what corporations do all day long with their TV ads,
finance educational and enlightening public service announcements.
You mean like all those ads from defense contractors pitching their
new missile system as being people friendly? If any court ever needed
a factual record to tell them what is actually going on out here in
the real world it surely must be this one.
But alas, at this point this alert is already quite long, and we have
still only scratched the surface of the totally bogus findings of
purported fact on which this outrageously heinous decision was based.
So we will have to keep you in suspense until the next installment of
the analysis of this shameful decision in ... the ongoing and tragic
Saga of the Outlaw Supreme Court 5.
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