Ultimately, politics does control the law.  And victory in politics–and therefore the law, absent a revolution of some sort, will always go to those who hold the best cards, i. e, will always side with those who have the most money.

          In the case of Citizens United vs. Federal Election Commission, Slip Opinion of January 21, 2010, Justices Roberts and Alito violated several settled principles of law and legal construction, viz.:

          a.)  they, along with Associate Justices Kennedy, Thomas and Scalia, on their motion, sua sponte, ordered the litigants to go back to their offices to add and brief a new Constitutional argument which had not been before the trial court or the intermediate appellate court (and which, therefore, had been WAIVED!!!)–to determine whether to void sec. 441b of the Bipartisan Campaign Reform Act of 2002 and overrule Austin vs. Michigan Chamber of Commerce, 494 U.S. 652 and McConnell vs. Federal Election Commission, 540 U. S. 93 which had held that corporations, i.e., fictional entities formed soley for creating limited individual exposure and to encourage the accumulation of capital,  could be limited in the amount of moneys to be spent on electioneering campaigns from their Treasuries, shareholders’ money,

i.) and the Court was itself so bald-faced, that it even stated in its Syllabus by the Court 1 (b) that they sent the case back for Re-briefing since Citizens United could not win on its earlier narrow argument…and that this was, clearly, the only way The Court could do what it wanted it to!!;

          b.)  they, the five majority justices, by themselves having raised the new issues, also undertook to overrule, by implication, the controlling precedents of Federal Election Commission vs. Massachusetts Citizens for Life, Inc., 479 U.S. 238; Austin vs. Michigan Chamber of Commerce, 494 U.S.  652; and Pipefitters Local Union No. 562  vs. United States, 407 U.S. 385, which had held that the leaders, or senior officers, of corporations cannot have the right to use investors money, or corporate Treasury funds to provide “…an unfair advantage in the political marketplace”– which had been held distinct from the moneys contributed to Political Action Committees, which had themselves been held to not be a conduit for the interests of business corporations; and

          c.)  they, the five august justices of the majority, decided a serious matter before them for reasons not on the record before them and not argued in the lower courts–which is violative of the procedural rules of every appellate court in the land–or at least every one of many before which I have appeared and argued appellate cases such as Citizens United, op cit.

          I recall three cases in my many years of practice in Oklahoma, Texas and Tennessee which “turned my stomach,” in that those three cases were, to my mind, decided by the pertinent courts upon matters or for reasons having nothing whatsoever to do with the facts or the issues before the Court.  What the justices and the judges did in those three cases soured me as a human being, and certainly as a lawyer, for it made me recognize so clearly that judges and justices, just like the rest of us human beings, are all flawed.  And we sometimes slip and do the “wrong thing”, or the unjust thing, even though we know, either before or after, that what we were about to do or had already done was improper.  I cannot here set forth the facts or issues of those cases, for if I do, the wrongs committed and the courts not doing their duty to dispense justice (with a “blindfold” on) would become apparent to too many people, not only the judges and justices but to the former clients.  Now many hundreds of persons, if they read this, might merely wonder if their cases were the ones in which the justice system failed.

          It is former President Bush and Justices Alito and Roberts that remind me of those three cases, for the three of them, reflect the truism that it is not what you know but who you know that really matters.  That is, if you happen to know a few of the really wealthy one per cent of Americans that in the “Bush years” garnered more than two-thirds of all of the Nation’s income growth, history shows that more “justice” will be dispensed to you than to the poor slob who lives at the corner of “Poor Street” and “Unemployed Ave.” on the other side of town. (The Huffington Post, August 9, 2009) That is how, in fact, justice has often been dispensed; but I fear that with the result in the Citizens United case, it will become the paramount and deciding factor in just about everything that we as Americans do–not just in the courts…but in all matters political.   

          And, is it not interesting that this all develops just as the mid-term elections of 2010 warm up? 

          If I had not voluntarily resigned my several licenses to practice law just after I retired, I might perhaps not have had the courage to write this particular paper…for total truth-telling sometimes embarrasses and angers the wrong folks.  

Don Switzer

Rogers, Arkansas

(c) January 29, 2010