Sessions is Right on Citizens United and Brown

Brian Beutler, reporter at the liberal Talking Points Memo, has a post mocking Sen. Jeff Sessions for comparing the Supreme Court’s Citizens United campaign finance decision to the Brown v. Board of Education decision that desegregated schools. But if you read Sessions’ actual comments, it’s pretty clear he was making the comparison on narrow grounds that both decisions overturned bad precedent.

Beutler quotes Sessions:

“[Marshall] was right on Brown v. Board of Education. It’s akin in my view to the Citizen’s United case. The court sat down and we went back to first principles–What does the Constitution say? Everybody should be equal protection of the laws,” Sessions told me after a Senate vote last night.

“Is it treating people equally to say you can go to this school because of the color of your skin and you can’t?” Sessions asked rhetorically. “We’ve now honestly concluded and fairly concluded that it violates the equal protection clause.”

How is that like Citizens United? “I think this Court, when they said ‘Wait a minute! If you’re talking about a precedent that says the government can deny the right to publish pamphlets, then we’ve got get rid of this one outlier case Austin — 100 years of precedent — and go back to what the Constitution [says].’ I don’t think that’s activism.”

Beutler adds, sarcastically, “And that, ladies and gentlemen, is how the prohibition on direct corporate expenditures to campaigns is exactly like forcing African-Americans to endure segregation, if you are Senator Jeff Sessions.”

Yet Sessions’ comments don’t attempt to compare the substance of the cases — or somehow say that the injustice of desegregation is the same as the injustice of corporate campaign expenditure restrictions. His argument is only that in both cases the Court found that existing precedent violated the Constitution, so they overturned those cases in favor of a the correct interpretation.

This argument was fleshed out recently by Heritage legal scholars Robert Alt and Hans A. von Spakovsky:

However, those criticisms ignore the fact that the Austin decision on independent expenditures and the part of the McConnell decision on electioneering communications were outliers in the Court’s First Amendment jurisprudence. The majority’s actions in Citizens United did not constitute judicial activism, but rather upheld basic First Amendment protections against unlawful encroachments by Congress. It is not judicial activism when a judge overturns two relatively recent decisions that were wrongly decided and that are in conflict with a long line of other precedents–particularly if the decision corrects constitutional errors. If this were not true, then the same critics of the Citizens United decision must believe that Plessy v. Ferguson[15] should still be the law of the land today and racial segregation should still be considered “constitutional” since under their slanted and sophomoric definition, the justices of the Supreme Court engaged in judicial “activism” in Brown v. Board of Education.[16] After all, the justices in Brown overturned Plessy and repudiated the “separate but equal” doctrine as unconstitutional–and arguably did so when they decided subsequent cases striking down similar policies by recalcitrant jurisdictions that acted contrary to Brown and its progeny.