Transcript Of An Interview With The Five Conservative Justices About The Recent Corporate Free Speech Case.
February 1, 2010
Transcript Of An Interview With The Five Conservative Justices
About The Recent Corporate Free Speech Case.
Your reporter recently was fortunate enough to be granted an interview by five Justices of the Supreme Court, Anthony Kennedy, John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito. The subject of the interview was the Court’s recent decision granting corporations the same free speech rights as human people. The interview was held in a secret chamber in the Court’s basement, where the conservative justices keep casks of amontillado. Justices Kennedy and Roberts did most of the talking for the conservatives, with occasional interjections from others.
It seemed to me that the best way to give the reader the full flavor of what these eminent jurists had to say would be to publish large sections of the transcript. Each Justice is identified by his initials in the transcript: AK (Anthony Kennedy), JR (John Roberts), AS (Antonin Scalia), CT (Clarence Thomas) and SA (Samuel Alito). Your reporter is identified by the initials YR (which does not stand for Young Republicans).
YR: “Good morning Justices Roberts, Kennedy, Scalia, Thomas and Alito.
Let me say first that I am most grateful for your willingness to sit for an interview about a particular case, which is never done by individual Justices, let alone a collective group of Justices. So I deeply appreciate your willingness to do this.
JR: No problem. We know you will play it straight down the right. So we know you will be fair.
May I offer you some amontillado?
YR: No thanks.
Justice Roberts, the dissent said your group of five were striking a blow against democracy. President Obama said, and I quote, “This ruling strikes at our democracy itself . . . . I can’t think of anything more devastating to the public interest. The last thing we need to do is hand more influence to the lobbyists in Washington or more power to the special interests to tip the outcome of elections.” So your group of five is charged with attacking democracy. Do you have a response?
JR: May I offer you some amontillado?
JR: You’re darn right we struck a blow against democracy. We think important decisions having a big effect on the country should be made by the five of us, not the louts who are elected to Congress or the Executive. We particularly think we should be the ones to elect the President. Four of us and the sainted Justice O’Connor elected George Bush and nothing bad resulted from that, did it? That guy Obama is lucky there were no hanging chads in 2008 or John McCain would be the President.
May I offer you some amontillado?
AK: My decision is a victory for free speech. In the first place, our freedom of speech prevailed, so the decision is a victory for free speech. Then too, I don’t know whether you read that rag the New York Times and read the article by Sheryl Gay Stolberg in the January 24th issue. She really knows what’s up with the Supreme Court since she so rarely writes about it. And she said “The ruling was expected to unleash a torrent of attack advertisements in the coming midterm election.” Good. That is a victory for free speech too. BANZAI!!!!
YR: Why are the coming attack advertisements a victory for free speech?
AK: Because those louts in Congress and the Executive deserve to be attacked.
May I offer you some amontillado?
JR: Anyway, I don’t know where all these people get off attacking us. The preamble to the Constitution says, “We the corporations of the United States, in order to establish a more perfect union, etc., etc., etc.” In his Gettysburg Address, Lincoln said the Civil War must continue until the North wins so that government of the corporations, for the corporations and by the corporations shall not perish from the earth. The inscription on the Statute of Liberty er Statue of Liberty, says “Give us your tired, your poor, your huddled masses yearning to work in our factories.” So what is the big deal about ruling that corporations have political and constitutional rights, just like us human people?
May I offer you some amontillado?
YR: Well, I gather from your opinion that you believe unions too, not just corporations, should have political and civil rights. How do you square that with the Preamble, the Gettysburg Address and so forth -- unions aren’t corporations, after all.
SA: Not true.
AS: Well, four of us don’t really think unions should have the same rights as corporations. But we had to say we did in order to get the fifth vote for our position. And we figured that as a practical matter it doesn’t matter, because the unions are diminishing drastically in size, power and money. Unlike corporations they no longer are able to buy Senators. Or even Representatives. So it doesn’t make any difference that unions have these rights. If unions ever become strong and rich again, we’ll simply say they don’t have the same rights as corporations, and anyone who claims we held otherwise simply didn’t understand our opinions.
YR: You know there was a day, during the gilded age or shortly afterwards, that Nelson Aldrich of New York was called the Senator from the New York Central.
AK: Exactly, we are looking forward to that happening again. Maybe we can have the Senator from Exxon Mobil, the Senator from Ford Motors, the Senator from Boeing and 97 other similar Senators.
YR: Since you have ruled that corporations have first amendment rights, do you also think they should have, for example, the right to vote?
JR: Absolutely. Absolutely. In our next case we are going to rule that corporations have the right to vote. In the case after that we’re going to rule that, since they have the right to speak and the right to vote, they also have the right to be elected. This will enable them to also speak and vote in the Senate and the House. I’m looking forward to the day when Senator Microsoft, with the CSpan cameras trained on it, can say “I yield the balance of my time to Senator Google.” And after speaking for only two minutes, Senator Google will say “I yield back the balance of the time to Senator Microsoft.
YR: Wow. Does this extend to the Presidency too?
JR: Of course. Of course. Have you ever watched ESPN Classics, those old boxing bouts from Madison Square Garden in the 1940s and 1950s, where the announcer -- I forget his name -- would introduce the fighter, then repeat his last name, and the fighter would then come out from his corner and do a little dance for the crowd? We look forward to something similar here. “Ladies and Gentlemen, in this corner, in the five-inch-thick solid gold trunks, weighing in at 75.8 trillion dollars, the challenger for the Presidency, JERSEY, JOE, GOOGLE! GOOGLE. And ladies and gentlemen, in the other corner, defending his title, dressed in the pure 105 carat diamond trunks inlaid with rubies and emeralds, weighing in at 79.4 trillion dollars, the defending President of the United States, SUGAR, RAY, MICROSOFT! MICROSOFT.”
YR: Wow. What a vision. I think I would like some of that amontillado now. Maybe a quart of it.
But wait. Let me first ask Justice Roberts something.
Justice Roberts, in the hearings on your nomination, you said your job as a Justice, like the job of an umpire in baseball, was not to make the rules, but only to call balls and strikes.
SA: (Interjecting) Not true.
JR: (Interjecting) You weren’t stupid enough to believe that bullshit, were you?
YR: Well, take the recent case. When you ruled that corporations have First Amendment rights, you weren’t just acting as an umpire, were you? Weren’t you making the rules?
JR: No! No way! We were just calling balls and strikes. Anyway, the pitch in that case was a strike. It rolled right over the middle of the plate.
May I offer you some amontillado?
YR: No. Strychnine will do.
But let me ask you some other questions.
I know that the five of you were worried that if corporations don’t have free speech rights, then even the media -- comprised of corporations -- could be stifled by government. And you were worried that our citizens would not know how and what to think if Roger Ailes and Rupert Murdoch and Bill O’Reilly were shut down and could not tell our citizens what to think. But the First Amendment also provides for freedom of the press as well as freedom of speech. Wouldn’t freedom of the press have protected the media?
There was a long silence. It grew uncomfortable. Finally, Justice Thomas said, “Freedom of the press?” Then there was another long silence, until Justice Thomas again broke it by saying, “That’s in the Constitution?” “Not true, “ said Justice Alito. The situation was getting embarrassing, so I switched the subject.
YR: Now the topic of the documentary in the case was Hillary Clinton. Did that affect your thinking at all? I mean, it’s known that you favored John McCain. Would you have ruled the same way if the movie had been an attack on McCain instead of Hillary Clinton?
AS: No. Of course not. We would have banned the movie and McCain would be President today. This would have been all to the good. We wouldn’t have this horrible problem with Afghanistan that we have today. There wouldn’t be an Afghanistan. There would only be a big hold in the ground where Afghanistan used to be.
YR: Are there any other rights that you think corporations should have in addition to First Amendment rights, the right to vote and the right to hold office?
AK: Yes, we think corporations should have the right to procreate, to have children. But they cannot have abortions.
How this is going to be worked out, I mean how corporations will procreate and have children, remains to be worked out scientifically. Maybe there will have to be a gigantic bed or something. But its only a question of time until science works this out.
I’ll bet that, if you were to phone me for an interview twenty years from now, I’ll be able to say, “Oh, I’m sorry. I can’t have lunch with you next Tuesday. I’m scheduled to have lunch at the Monocle on Capitol Hill with my granddaughter. She’s a corporation, you know.
Oh yes. The scientists will work out how to do this. But I reiterate, no abortions.
YR: Now I know that all of you believe that with rights come responsibilities. And since you are going to give corporations all these rights, are you going to impose responsibilities on them too? For instance, will it be possible to prosecute a corporation for murder?
CT: (With great enthusiasm) You bet it will! And if it’s convicted, it will get the needle! We will buy a 3,000 acre field, build a huge gurney in the field, put the corporation on the gurney, and give it the needle!!! You bet!!
JR: May I offer you some amontillado?
YR: No. How about a lesser act like libel. Could a corporation be “liable for libel,” heh, heh?
JR: You bet a corporation will be liable for libel.
YR: Well, let me give you a specific example to see what you think. Some people claim, Justice Roberts, and it must be untrue, and therefore libelous, that you grew up in a small, wealthy town, Long Beach, Indiana, on the shores of Lake Michigan, that was known to be highly anti-Semitic, and that you managed to hide this during your confirmation. They also say that this is even more likely to be true because that general part of Indiana and Michigan, on the shores of Lake Michigan, had been a home to the Nazi Bund before the war -- you know, the war we fought in the 1940s, about fifteen wars ago -- and that anti-Semitism was a sort of national sport then. Now I know that none of this could be true because you hid nothing during your confirmation. So if a corporation were to say it, could it be guilty of libel?
JR: Yes, the sons of bitches.
YR: Would the corporation be guilty of libel even if everything it said were true?
JR: Yes, especially if it is true.
YR: Can you explain this a bit more?
JR: Sure. We are giving corporations the right to speak, to vote, to hold office because corporations are so much smarter than people. Corporations have all the experts, all the knowledge, all the facts. So, like Nino said in his concurring opinion, they are the ones that know all about the economy. As Engine Charlie Wilson said over 50 years ago, what GM thinks is good for GM is good for America.
But, especially because they are so much smarter than people, we have to be sure that corporations exercise their rights responsibly. We can’t have them doing irresponsible things like committing murder, at least not in excess of one murder for each 100 million dollars of corporate capital, or saying that I grew up in a town that was highly anti-Semitic and thus, almost by definition, reactionary. I mean, what if I did? Harvard was filled with Jews. So was my law firm. So what the hell is the point of implying that I was surrounded by reactionaries when I was young and impressionable. I’ve shown that this has had no effect on my liberal attitudes, or, as the pantywaist liberals call it lest they be tarred with the dreaded l word, my “progressive” attitudes. So we can’t have corporations acting irresponsibly by liableing me, excuse me, libeling me, by saying I grew up in a heavily anti-Semitic and therefore, almost by definition, reactionary area. Such irresponsible corporations are definitely liable for libel regardless of the truth. This is the type of irresponsible speech which we must stamp out so that corporations exercise their political rights responsibly.
YR: Well Justice Roberts, let me ask this. You say that a reason for giving corporations the rights to speak, to vote, to hold office, is that they, not human people, have all the experts, all the knowledge, all the facts. Well, if that is true, then not only should corporations have the rights, but also why shouldn’t these rights be taken away from human people? After all, they don’t have the experts, the knowledge, the facts?
Justice Roberts didn’t answer. There was a long, uncomfortable silence. Finally Justice Scalia said, “You’re damn right. These rights should be taken away from human persons because they are dummies, and we intend to eventually do just that.”
YR: “Justice Scalito,” I said to Justice Alito, you haven’t said anything yet. Would you comment on this question of taking the rights away from human people?
SA: Well, as you know I’m generally pretty taciturn, although like Chief Justice Roberts, I opened up completely during my confirmation hearings. But, yes, we are going to greatly reduce or eliminate the rights of mere human people, those dummies. This has to be done slowly, on a case by case basis, however, so that people will come to accept the ineluctable logic of it. This is called good legal strategy, and here it is a sort of 1940s, 1950s and 1960s Thurgood Marshall strategy in reverse. First we rule that corporations have First Amendment rights because they have all the experts, all the knowledge, all the facts. Then we rule that corporations have the right to vote because, as we’ve said, they have all the experts, all the knowledge, all the facts. Then we rule that, for the same reason, corporations have the right to hold office. By this time people will have gotten used to and accepted the idea that corporations have all the smarts and human people do not, so we will then be able to rule, without an outcry, that human people do not have the rights to speak, vote, or hold office because they do not have the smarts, which was at least implicit in our prior opinions saying corporations have all the smarts. If anyone disagrees that it was implicit, we’ll say they don’t understand the prior cases. All this, as I say, is what lawyers and courts consider to be long term strategy.
As a matter of fact, if you inquire you will find that a strategy very like this was what was used by a Terry Haute lawyer named Bopp to get us to where we are today, when we have already ruled in favor of corporations, and was ultimately participated in by a guy named Bossie, who heads the organization in whose favor we held. I am not making this up. It’s Bopp, as in bop human persons on the head, and Bossie, as in tell human persons what to do. Isn’t that fitting? You couldn’t make this up.
YR: Wow, your proposed legal strategy is purely brilliant. It is so thoughtful and well considered. Wow! I think I’ll have a gallon of that amontillado.
But first let me ask this. The newspapers have said that Tom DeLay’s lawyers think your decision may enable them to obtain dismissal of the prosecution against him, to get the case against him thrown out of court. Do you have any comment on that?
AS: From your mouth to God’s ear.
Let me be clear: There should be no delay in throwing out the prosecution against DeLay. The case against DeLay should be tossed without delay. If this sounds like a contradiction, so be it. No delay for DeLay. He represents what was best about the right wing of the Republican Party in the 2000s.
YR: Justice Thomas, you’re a big proponent of states’ rights. Someone in Colorado said that the Court’s decision giving freedom of speech protection to corporations has turned the Colorado constitution into waste paper. This would seem contrary to states’ rights. What do you say to the argument that the Court has turned the Colorado constitution into waste paper?
CT: Good. I hope there were enough copies of the Colorado constitution and other state constitutions -- 20 or 30 million copies perhaps -- so that they can turn all the waste paper into a few tons of newsprint. There is a shortage of newsprint, you know.
But . . . . . on second thought . . . . .
YR: Justice Roberts, Justice Kennedy, Justice Scalia, Justice Thomas, Justice Alito, I want you to know how greatly I appreciate all the time you have given me. You have been very indulgent, and I am grateful. With your permission, I will ask just a few final questions, and then we will be finished.
JR: What do you mean “we” will be finished, said Justice Roberts. Go ahead.
YR: It has been claimed by some, including dissenters, that your opinion is going to cause havoc with elections for judges. It is said that many corporations will spend huge fortunes -- scores of millions of dollars -- electing judges who will be beholden to them and will vote in their favor and therefore against all plaintiffs in personal injury cases, environmental cases, employment discrimination cases, illegal firing cases and so on. What is your response to this?
SA: Not true.
AK: So long as the corporations and a Judgeship candidate do not get together in a room and agree in advance that the candidate will do this, it is okay. There will not be what I call a quid pro quo. The candidate will not have been asked to do it, and the corporation will not have demanded he do it, so it won’t matter if the corporation has contributed ten million dollars for the candidate’s election or 100 million dollars or whether the candidate wins only because of the corporation’s dollars. It is just like with Congress. The judicial candidate or a Congressional candidate will remain free to vote as he or she pleases in a case or in Congress, and will not be affected by the fact that the corporation gave millions of dollars for his election. It’s been this way in Congress for decades, and we are confident it will be this way with courts.
Anyway, the whole question will soon become superannuated. Because, as with Congress or the Presidency, corporations will be free to run for election as judges themselves. So you won’t have to worry about the possible corrupting influence of contributions on human-person candidates. Nor will you have to worry, when a corporation wins election to a judgeship -- as they had to worry about candidates in the Gilded Age -- about whether a candidate, once he or she is bought, will stay bought, or will instead sell out to somebody else who gives him more. The corporation as judge or legislator will obviously vote for what it wants, so there will be none of this “will he stay bought?” concern.
And for the same reason, you won’t have to worry about undue influence, as the dissenters pretend you will have to. When corporations contribute to the campaign of human persons, the candidate will not allow the corporations to unduly influence them. And when the corporations themselves run for and are elected to office, there will of course be no undue influence. How can anyone be accused of having undue influence over himself? The same is true for corporations.
YR: Thank you. Justice Scalia, you are often said to be an originalist, to believe in interpreting the Constitution as the founders would have and did. How can this recent opinion be an originalist opinion? The founders never gave corporations the constitutional rights of free speech, or to vote, or to run for office.
AS: They would have if I had thought about it.
Anyway, I’m for originalism only when I’m for originalism, and not when I’m not. So the recent opinion is consistent with my philosophy.
YR: Thank you. Justice Roberts, there are some people who are claiming that your wing of the Court is prepared not only to rule that corporations have a plethora of rights such as free speech, to vote and to hold office, but is also prepared to rule that, when a corporation is President, it will be permissible for a bot to be Vice President. Is that true?
YR: Really? Why?
JR: Like corporations, bots are smarter than people.
YR: One last question if I may. I apologize for this question, because I know the topic is very sensitive. The name of the film that caused the problem in the recent case was “Hillary: The Movie.” It was a smash at former Senator Clinton, and I know how you feel about her. But there is a rumor floating around that President O’Bomber is considering appointing former Senator Clinton to the Supreme Court in order to try to thwart you in future, and more or less to rub your face in it, as one might say. There is also a rumor that former Senator Clinton might be amenable to the appointment if she can simultaneously be a Senator and a Justice, and in a few years can simultaneously be a Justice and President. Do any of you Justices have any views about this?
There was silence. It lasted awhile. Then Justice Alito said, “Not true.” Then there was more silence. Finally Justice Roberts said: “I think I speak for all of us when I say ‘No problem.’ We’ll simply invite her down here to have some amontillado.”
YR: Well again, Justices, let me thank you profusely for giving me all this time. And now I’ll be happy to join you in that amontillado. I think I’ll have a cask of it. But first let me just put my tape recorder into its case.
The tape recorder’s case was by the coat rack, which was right next to the door, which had been ajar during the entire interview. I got up, picked up the tape recorder, and sauntered over to the coat rack and case very slowly, so that nobody would suspect my intent. When I got to the door, coat rack and case, and was still carrying the tape recorder, instead of putting it into its case, I suddenly wheeled, shoved open the door, and ran like hell. I heard Justice Roberts screaming, “He’s got the tape recorder. Don’t let him escape. For the love of God, Nino, catch him.”
“For the love of God, Nino, catch him” was the last thing I heard from any of the Justices. I heard it only once. But in my mind I kept hearing, over and over, “For the love of God, Montresor.” “For the love of God Montresor.” I ran like hell and kept on running and running and running.*
*This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, you can, if you wish, email me at Velvel@VelvelOnNationalAffairs.com.
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