Karlan’s disdain for the Citizens United decision — which held that Americans do not forfeit their First Amendment rights when they choose to speak collectively through corporate entities — is muddled. She denounces “spending by outside groups” without explaining what they are outside of. Evidently she accepts the self-interested assumption of the political class — the parties and candidates — that elections are their property and independent participants are trespassers. Karlan approvingly quotes the unsubstantiated assertion of Justices Ruth Bader Ginsburg and Stephen Breyer — itself disdainful of elected officials to whom Karlan urges vast deference — that contributions “buy candidates’ allegiance.” She seems unaware that abundant social science demonstrates that contributors respond to candidates’ behavior, not the reverse. And when darkly warning about campaign contributions from corporations’ “management,” she seems unaware that much of the corporate political spending is by nonprofit advocacy corporations — Planned Parenthood, not Microsoft.
It is, however, the court’s health-care decision that she thinks especially reveals “disrespect for, and exasperation with, Congress.” Even though Roberts upheld the crucial provision — the mandate — he did so with what Karlan considers a faulty attitude. His opinion was “grudging” in finding that, although Congress flinched from calling the mandate a tax, the law could be saved by calling it this.
Karlan is very difficult to please. Roberts rescued Congress’s handiwork from Congress’s clumsy legislative craftsmanship, and still she complains because in doing so Roberts inevitably made “a thinly veiled critique of Congress.” Which Karlan seems to consider lese-majeste. “He conveyed disdain even as he upheld the Act,” thereby revealing the conservative justices’ “premise of distrust” toward Congress. They are in good company: James Madison warned of Congress “everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” But prudent wariness about Congress is not tantamount to disdain for it or democracy.
Today’s American public does not share Karlan’s nostalgia for the Warren court, which she says was “optimistic about the possibility of politics.” Karlan subscribes to the progressive axiom that the cure for the ills of democracy is democracy, meaning elections. She sees little need for courts to protect against what the Founders feared — liberty-threatening excesses of majorities. With a true progressive’s impatience with the crux of the Constitution, the separation of powers, Karlan wants the court to consider Congress “a full partner in seeking to address the nation’s pressing problems.” But often our institutions preserve liberty by being rivals rather than collaborators.
She abhors the conservative justices’ “combination of institutional distrust — the court is better at determining constitutional meaning — and substantive distrust — congressional power must be held in check.” Clearly she thinks Congress would be “better” at judging the limits of its own power. This fits her assumption that restraints on its power are presumptively anti-democratic.
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