Op-Ed: Is Citizens United Really One of the Worst Supreme Court Decisions Ever?

That’s what Sen. Ben Cardin apparently thinks, or at least so I heard him say on the radio this morning.

To be generous, I’m going to go out on a limb and say that I doubt he really believes that and he’s only making such statements because they’re politically convenient.

Damning with faint praise? The alternative is much worse. Here are 10 Supreme Court decisions that Cardin would potentially be ranking as less offensive than Citizens United.

1. Dred Scott v Sandford – I believe most people are familiar with this case, where the Supreme Court held that no African American could be considered a U.S. citizen and further held that slaves could not be freed by transport into free states.
2. Schenck v United States – A lesser known case, here the court ruled that the defendant, who had protested the draft during WWI, was not protected by the First Amendment when making such speech. As a result Schenck was imprisoned for printing and distributing pamphlets critical of the draft.
3. Buck v Bell – One of the multiple opinions on this list written by Oliver Wendell Holmes, the Supreme Court upheld a government policy of compulsory sterilization of the unfit, including the mentally handicapped. It is particularly notorious for Holmes quip “Three generations of imbeciles are enough.”
4. Plessy v Ferguson – Another well known case, the Supreme Court ruled in this opinion that the policy of “Separate, but Equal” did not violate the protections guaranteed by the 14th Amendment.
5. Bowers v Hardwick – A disgustingly recent ruling (determined in 1986), the Court held that it was permissible to jail homosexual men and women for consensually engaging in oral and anal sex.
6. Wickard v Filburn – A Depression era case, Roscoe Filburn, a farmer, had been growing wheat in excess of government set caps but was only using it for use on his own farm. The Court ruled that the government could legitimately require him to destroy the excess wheat and pay a fine on the basis that this wheat, grown for personal use only, constituted interstate commerce.
7. Korematsu v United States – A case from WWII, Korematsu was suing the U.S. government to overturn FDR’s executive order placing all persons of Japanese ancestry into internment camps without any trial or charge. The Supreme Court upheld the order, claiming no wrongdoing on the part of the government.*
8. Kelo v City of New London – A recent case, the Supreme Court ruled that a government can rightfully take private property and then transfer it to other private entities on the mere basis of it serving a “public purpose,” such as claims of increased jobs and tax revenue.
9. Gonzales v Raich – Another recent case, the Supreme Court ruled that the federal government can legitimately prevent individuals from growing medical marijuana for their own use, even in states that allow medical marijuana. This case is particularly objectionable due to the Commerce Clause understanding used in the decision, an extension of the Wickard logic that growing marijuana for personal use would impact the interstate market for marijuana, a market entirely outlawed by federal law.
10. The Slaughter-House Cases – In this case, the Supreme Court upheld a slaughterhouse monopoly granted by the state of Louisiana. The case matters however as it was the first test of the 14th Amendment and the Court signfiicantly narrowed the interpretation of it, effectively erasing the Privileges and Immunities clause by limiting it to only guaranteeing a few select items such as national citizenship and rights accruing out of the existence of the federal government, like the right to a passport or right to travel the waterways of the U.S. or to petition Congress.

Given the above, it seems abundantly clear to me that the Citizens United decision isn’t one of the worst Supreme Court rulings ever, it isn’t even in the top 10 of the worst rulings. And if you look at the effects of the rulings, on a scale of magnitude, any ill effects of Citizens United (and I think it’s debatable to what degree they are problematic) are minuscule in comparison to the 10 cases above.

Of course that means that Sen. Cardin either has an incredibly deranged moral compass and honestly thinks Citizens United is on a par with these cases or he is simply saying it because he thinks it is politically convenient (I’ll do him the service of assuming he is familiar with the history of Supreme Court jurisprudence).

Now as I said, I can’t believe that Sen. Cardin is the kind of monster that would think letting corporations independently spend money on political ads is worse than denying citizenship to African Americans, taking away free speech rights, sterilizing the mentally handicapped, enforcing racial segregation, jailing adults for consensual sex, punishing people for growing crops for their own use, imprisoning people on the basis of their ethnicity, stealing their property to enrich already well-off others, keeping individuals from growing medical marijuana in compliance with state law, or letting states trample civil and economic liberties.

However if I am right, and Sen. Cardin is only making these sort of claims about Citizens United, when it’s not even in the top 10 of worst cases, then it is incredibly insulting to the people of Maryland that he thinks we would fall for that.

It would have to mean that he either thinks we are complete ignoramuses that don’t know anything about Supreme Court history or we are moral degenerates that truly think Citizens United worse than the cases above.

If that is Sen. Cardin’s assessment of the electorate, neither speak particularly well of him nor give reason to want to see him re-elected.
*The Korematsu case is a bit personal to me. My grandmother and great-aunt, both U.S. citizens at the time were imprisoned in internment camps along with their parents and other relatives.