The long view

Justice Kennedy’s opinion in last week’s big Supreme Court case began with an epitomical opinion spoiler that proves (once you ignore all the superfluity) that it’s all about how you frame the issue: “Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an ‘electioneering communication’ or for speech expressly advocating the election or defeat of a candidate.” I have no idea why the opinion rambles on for pages after that or what more there might be to say. Laws prohibiting speech are not allowed. Everyone knows that.

Skipping over the rest of the Court’s opinion and past the concurrences, Justice Stevens’ first line in dissent informs, “The real issue in this case concerns how, not if, the appellant may finance its electioneering.” Ah. Well, that might actually justify filling some pages. It’s pretty clear already that Justice Stevens is right on this one. And, just as with Daylight Savings Time, I’ve now effectively added an hour to my life by skipping over Kennedy’s syllogistic disquisition.

Since it’s been about two years since I’ve seen a television commercial, the Court’s decision about corporate speech is not going to affect my life at all anyway. The only importance of the decision to me is that it has all eyes on Justice Stevens, as Adam Liptak’s short piece yesterday illustrates. When Stevens was in his 20s, he (along with Byron White, though I’m not clear on whether they knew each other then) was an intelligence officer in the United States Navy in the Pacific Theatre. Now, during his 90th lap around the sun, he is still reading opinions from the high court.

And all of this is excruciatingly important to understanding what the Court is supposed to do and what it actually does. Even though pundits (as Liptak demonstrates) love to slap Stevens with the label of “liberal”—because life is easier to comprehend if you divide everything, as Pink Floyd famously intoned, into Us and Them—the truth is rather more complex. (Stevens was appointed by Nixon to the Seventh Circuit and to the Supreme Court by Ford. He is “liberal” in the sense that he joined the fight against aggressive fascists but the label is otherwise vapid.) Stevens’ vision of America is simply longer and deeper than that of at least some of his brethern, as Liptak also coyly points out:

Justice Stevens, who served in the Navy during World War II, reached back to those days to show the depth of his outrage at the majority’s conclusion that the government may not make legal distinctions based on whether a corporation or a person was doing the speaking.

“Such an assumption,” he wrote, “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.”

The reference to Tokyo Rose was probably lost on many of Justice Stevens’s readers.

Following Stevens’ lead, I guess, Liptak declines to enlighten the New York Times readership as to who or what Tokyo Rose was, but the phrase is not in the opinion as merely some Montgomery-Burns-type idiosyncratic ancient pop-culture reference. It is a claim to a jurisprudential philosophy forged as much through study as through experience fighting for the Republic. What I’m saying is, Stevens is Yoda, forced to deal with a bunch of Luke Skywalkers fumbling about the swamp not quite yet clear on what the point of being a Jedi is.