The Public vs. the Supreme Court: A Comment on the Citizens United Case

By Prof. Steven J. Heyman

The following is the text of remarks that Professor Heyman made at a forum on Citizens United v. Federal Election Commission which was held at Chicago-Kent on February 24, 2010, and which was co-sponsored by the Student Bar Association and the Chicago-Kent chapters of the American Constitution Society and the Federalist Society.  Professor Sheldon Nahmod also spoke at the forum; his discussion of the case can be found here and here. 

In the Citizens United case, the Supreme Court was sharply divided, with five conservative Justices in the majority and four liberals in dissent.  The immediate political reaction also followed predictable lines.  President Obama and the congressional Democrats denounced the decision as a fundamental blow to our democracy.  On the other hand, Republicans like Mitch McConnell, the Senate minority leader, hailed the decision as a victory for freedom of speech.

All of this might lead one to believe that the issue in Citizens United is just one more area where the country is deeply divided along ideological lines, just as it is on issues like health care reform or government spending or abortion.  But there are some indications that this isn’t true.  For example, last week the Washington Post and ABC News released a poll that showed that four out of five Americans disagree with the Court’s decision in this case.  Still more remarkably, the poll shows very little difference among political groups:  85 percent of Democrats oppose the ruling, but so do 81 percent of Independents and 76 percent of Republicans.  And the poll also suggests that this is an issue that people feel deeply about:  65 percent of respondents say that they are strongly opposed to the decision, and 72 percent say they would support congressional action to reinstate the limits on corporate advertising in elections.

So the question that arises is this:  What led the Supreme Court to make a decision that is so broadly rejected by the public?