From The Pen:
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This is the third in our series of lambasts against the various 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.
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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 onerous.
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 prejudicial predetermination.
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 dishonest 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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