Last week, the Occupy movement came to the Supreme Court. To protest the second anniversary of the Citizens United decision, the group called Move to Amend organized demonstrations at courthouses around the country — including the steps of the high court itself. (The protests began peacefully but ended with 11 arrests.) Say what you will about the strategy of organizing political protests against controversial judicial decisions, which can be overturned only by constitutional amendment, but one thing is clear: The Supreme Court was spectacularly wrong in Citizens United v. Federal Election Commission when it confidently predicted that the ruling would have no significant impact on Americans’ confidence in their political system. In this sense, the Citizens United decision has much in common with the ruling in Paula Corbin Jones v. William Jefferson Clinton, which allowed President Bill Clinton to be sued for sexual harassment while in office.
Both decisions were made by a Supreme Court composed of former academics and judges rather than elected officials, and the decisions highlight the court’s need for a former politician — with a practical understanding of how U.S. politics actually functions. In the Paula Jones case, the Supreme Court confidently predicted that the president wouldn’t be distracted from doing the nation’s business. Like Citizens United, however, that decision had the opposite effect. These decisions were made in a judicial vacuum — with little knowledge or understanding of the serious political implications they could create
The 5-4 majority decision in Citizens United, written by Justice Anthony Kennedy, was remarkable for its combination of judicial overconfidence and political cluelessness. Comparing efforts to restrict corporate campaign funding to efforts to ban beloved movies, Kennedy warned: “When word concerning the plot of the movie ‘Mr. Smith Goes to Washington’ reached the circles of government, some officials sought, by persuasion, to discourage its distribution.”