One way of looking at the latest Supreme Court decision speeding the flow of big money into elections — a ruling destined to have a bigger impact on the culture of Congress than anything that happens at the Capitol this year — is that one side’s definition of political reality narrowly prevailed over the other.
Scenarios about the corrupting potential of so many more millions going to candidates, Chief Justice John G. Roberts Jr. asserted in the controlling opinion, “are either illegal under current campaign finance laws or divorced from reality.”
“In reality,” Justice Stephen G. Breyer countered on behalf of the four dissenters, “the anti-corruption interest that drives Congress to regulate campaign contributions is a far broader, more important interest” than the five-person majority recognizes.
It’s hardly unusual that, after considering the same collection of facts and arguments, the court’s conservative majority declares the glass at least half full, while the liberal minority insists the same vessel is more than half empty. What’s remarkable in this disagreement is how distant the justices are from experiencing the reality of the modern political money system.
On the current court, only Roberts and Justice Elena Kagan have donated to federal candidates or political action committees in the past 16 years, according to the Federal Election Commission database of itemized contributions .
The most obvious reason is that the other seven justices have been sitting somewhere on the federal bench since before 1997, when the FEC began digitizing donation records. And, because of the obvious potential for a conflict of interest, the official code of conduct for United States judges prohibits them from making political contributions.
But that explanation leads directly to one of the longstanding criticism of the modern Supreme Court: It has become so dominated by professional jurists that people who have worked in the political arena have been almost entirely boxed out. Eight of the current justices previously served on one of the United States circuit courts of appeal — but only three-fifths of the 103 people who have previously been on the court had any sort of judicial experience.
None of the current justices has ever sought elected office, and that has been the case since Sandra Day O’Connor retired nine years ago. (She was a Republican state senator in Arizona from 1969 through 1974, when she was elected a state trial court judge in Phoenix.)
That means it’s been four decades since a Supreme Court justice solicited a campaign contribution.
And, while 14 people who served in the Senate and 17 others with time in the House went on to the high court, the last justice who ever won a federal election stepped down from the bench way back in 1971. (That was Hugo Black, an Alabama Democrat who won his second and final Senate term in 1932.) For congressional experience, the best the current court can boast is that two members were Senate staffers back in the late 1970s: Breyer was chief counsel to the Judiciary Committee and Clarence Thomas was a legislative aide to Missouri Republican John C. Danforth.
And, because of their lifetime appointments, lobbying for their own confirmations will be the last time any of the justices will ever have to be personal players in that ultimate inside political game — which will now become even more unduly influenced by the most generous campaign benefactors, if the critics of the McCutcheon v. FEC decision are to be believed.
The two justices who have held jobs outside a federal courthouse in the past two decades donated less than $18,000 between them in the years before their initial presidential appointments — suggesting neither was ever inclined to be the sort who would write checks for millions in the absence of the aggregate contribution limits the court just struck down.
While he was the partner in charge of the appellate practice at Hogan & Hartson in the late 1990s, Roberts donated $4,000 to the firm’s PAC, $2,700 to a trio of GOP Senate candidates (one was colleague from his time on the Reagan White House staff) and $1,000 to the 2000 presidential campaign of George W. Bush. The 43rd president selected Roberts as his first nominee to the D.C. Circuit the next year.
While she was a professor and dean of Harvard Law School, Kagan donated $2,000 to Al Gore's losing 2000 Democratic presidential ticket and $1,200 to a trio of unsuccessful House candidates (one was a colleague from her time on the Clinton White House staff). Otherwise, Kagan bet on prominent winners: $750 to both Hillary Rodham Clinton’s 2000 Senate campaign in New York and John Kerry’s 2002 Senate race in Massachusetts, $2,000 for Barack Obama’s 2004 Senate bid in Illinois and then the maximum permissible $4,600 to Obama’s 2008 presidential campaign.
That was the most recent dabble in the world of campaign finance by a Supreme Court justice, because Kagan was chosen as solicitor general before Obama's 2009 inauguration.
Consider that record up against their roles in the other major issues that have come before the high court.
All of the justices are offered medical insurance subsidized by their employer. All of them stand to benefit from a pension in retirement. All are making personal telephone calls every day, those records turned over to the National Security Agency. All are breathing air, generating auto emissions and heating their homes in ways the Environmental Protection Agency has an interest in regulating.
They all went to prestigious colleges that make affirmative action part of their admissions process. All rely in their daily lives on patented inventions, copyrighted software and the myriad goods and services exchanged through interstate commerce. All practice a religion that’s suffered serious prejudice in history. (Six are Roman Catholic, three are Jewish.) All have lived in places where racial tensions and discrimination have been obvious. While only six are parents, all have presumably had an opportunity to try conceiving a child. And it’s a safe bet that all have fallen deeply in love.
Personal experience is not supposed to play a role in judicial deliberations of course, but it cannot help but inform a judge’s perception of the reality of every case. And each justice has had experiences related to all the major issues recently before the Supreme Court — save one.