Citizens United v. FEC: The changing landscape of the justice system

No, I haven't gone into hiding nor have I given up my blog. I have spent the last few months working on an update to my book, California Summary Judgment and Related Termination Motions. In the first month, I began at a leisurely pace, fitting in a few hours here and there, quite confident that I would casually saunter to the finish line (or the publisher's deadline) without a bead of sweat on my brow. All that changed in the last month, and mostly, the last few weeks. As I could see that I was coming close to the end of my labors, some small madness overtook me and I could think of nothing but finishing the update.

Somewhere around January 21, 2010, the news of a recent U.S. Supreme Court decision penetrated my obsessed skull and then the headlines were announcing the holding in Citizens United v. FEC, which opened the floodgates for campaign-financing by corporations. In essence, the Court invalidated a prohibition against corporations and unions from using their general treasury funds for "electioneering communications." That decision also applies to allow such "speech" by corporations created in foreign countries or funded by foreign shareholders. The opinion is extremely lengthy and many have written about the holding in this case. My focus is on how this case is viewed by citizens who are looking to the judicial branch to dispense justice.

The Court was divided 5-4 over the decision with the usual conservatives leading the charge and the more "liberal" wing handling the dissent. We are very familiar with this split and everyone believes that the split is divided along political lines. That very conclusion raises a number of concerns among people who believe that the courts exist to serve justice.

When a client wants to appeal a case, there is a belief that somehow the jury did not understand the case, the other side outspent the appellant, or as frequently claimed, appellant's attorney failed to properly try the case. These clients are desperately seeking to have a higher court review what happened below and to dispense justice. They believe that if they presented their appeal to every appellate court in California, the result would always be the same because justice is not political or influenced by personal beliefs.

That concept (or fantasy, as some might call it) of our system of justice is eroding as we all have seen "justice" being dissected along political and ideological lines. Nowhere is that example more obvious than in decisions by the "highest" Court in the land.

Some may hail the Court's decision as a triumph for freedom of speech. In his dissent, in which Justices Ginsburg, Breyer and Sotomayor joined, Justice Stevens disagreed, writing, "The Court's ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution."

One might ask how these justices could come up with such differing viewpoints on what appears to be a First Amendment issue. Who would ever say they are not in favor of the First Amendment? But yet, not only do we have differing viewpoints, but we have the United States Supreme Court announcing that its past decisions, even if only seven years had passed, were wrong. Well, then, does justice change with the time? If it does, what changes over time? Obviously, the makeup of the Court, and the prevailing political climate.