Image from Corporations8MyBaby
Jess Bravin at WSJ:
During arguments in a campaign-finance case, the court’s majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled.
But Justice Sotomayor suggested the majority might have it all wrong — and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.
Judges “created corporations as persons, gave birth to corporations as persons,” she said. “There could be an argument made that that was the court’s error to start with…[imbuing] a creature of state law with human characteristics.”
After a confirmation process that revealed little of her legal philosophy, the remark offered an early hint of the direction Justice Sotomayor might want to take the court.
In the Wall Street Journal, Jess Bravin scrutinizes a comment made by Justice Sotomayor during the Citizens United oral argument – her first session on the Court: “[judges] created corporations as persons, gave birth to corporations as persons…There could be an argument made that that was the court’s error to start with.” Bravin reads in these words hesitation to grant expansive corporate rights and a hint of her vote in Citizens United. By contrast, questions asked by members of the Court’s conservative majority during the Citizens United argument suggest they believe corporations have broad First Amendment rights. Bravin observes that this position is consistent with the Court’s steady expansion of corporate rights into the 1970s, though the Court’s more recent precedents are less decisive.
Ashby Jones at the WSJ Law Blog:
“I don’t want to draw too much from one comment,” says Todd Gaziano, director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation. But it “doesn’t give me a lot of confidence that she respects the corporate form and the type of rights that it should be afforded.”
For centuries, corporations have been considered beings apart from their human owners, yet sharing with them some attributes, such as the right to make contracts and own property. Originally, corporations were a relatively rare form of organization. But today, it’s “just complete confusion” over which rights corporations can claim, says Prof. William Simon of Columbia Law School.
In any event, on today’s court, the direction Justice Sotomayor suggested is unlikely to prevail. During arguments, the court’s conservative justices seem to view corporate political spending as beneficial to the democratic process. “Corporations have lots of knowledge about environment, transportation issues, and you are silencing them during the election,” Justice Anthony Kennedy said during arguments last week.
But Justice Sotomayor may have found a like mind in Justice Ruth Bader Ginsburg, who, evoking the Declaration of Independence, said during the Citizens United case: “A corporation, after all, is not endowed by its creator with inalienable rights.”
Both of these directions are arguably activist; they’re certainly a violation of the stare decisis tradition. But corporate personhood is a bedrock principle of American corporate law; the only question is how far it extends. While being gradually limited in scope in recent years, the premise has never been seriously questioned by the Supreme Court. Campaign finance law, conversely, has always been a balancing test, with the Court both recognizing that donating to candidates and political advertising have qualities of speech and yet deferring to the public policy interest in reigning in the appearance of undue influence.
UPDATE: NYT Op-Ed