Photo of Zephyr Teachout by Digital Media/Flickr
When Senate Majority Leader Mitch McConnell announced—a mere one hour after Justice Scalia’s death was confirmed—that the Senate would not consider a Supreme Court nominee this year, it should not have been surprising.
Sure, it was tasteless and unprecedented in its timing and bluntness. But McConnell has consistently obstructed Obama’s lower court picks. Last year, in fact, the Senate confirmed just eleven federal judges, the lowest number in more than fifty years.
McConnell’s goal with the high court vacancy, of course, is to stall the process until a hoped for-Republican President can appoint another Scalia. The announcement made an ugly and divisive presidential race even uglier and more divisive.
But according to Fordham law professor Zephyr Teachout, the controversy could be a boon to the electorate in more ways than one. A rising progressive star, Teachout is currently running for Congress in upstate New York.
“It’s very important to have a full and functioning court,” she said in a recent interview, adding that this can be a “moment of constitutional education” for some voters.
“Voters don’t always realize how incredibly important a presidential election is for the Supreme Court,” Teachout said. “I think you’re going to see more voters connecting the dots between the Supreme Court appointment power and the presidential election.”
A relentless advocate for removing money from politics, Teachout knows, of course, how important picking the right justice is to her key issue. As she recently tweeted: “I believe in a Supreme Court that understands that super PACs corrupt elections. With one more justice, we could have that.”
Much of Teachout’s recent career has been spent as an ideological adversary of Scalia’s. In 2014, she published Corruption in America, a comprehensive takedown of the modern Supreme Court’s campaign finance rulings. Teachout blasts the court’s 2010 Citizens United decision, which gave rise to “Super PAC elections” and defined corruption so narrowly as to effectively strip it of meaning. Teachout has said her book is “an extended letter to the Supreme Court,” aimed primarily at Justices Scalia and Kennedy.
Teachout’s main ideological dispute with Scalia is over political corruption, which she defines as using public office for private gain. In our current political system, she says, this kind of corruption is ubiquitous: from legislators shaping policy to appease campaign donors, to the revolving door between industry and elected office.
If we don’t call corruption what it is, Teachout argues, we can’t fight it. But Scalia (and the conservative majority) interpreted it strictly as quid pro quo: “I’ll do this for you if you do that for me.” But rarely are corrupt deals stated so explicitly. And, while Teachout declined to comment on Scalia’s legacy, the inescapable conclusion of her book is that Scalia’s decisions have made the American political system more corrupt.
“The American democratic experiment is in the midst of a political disruption enabled by this conceptual disintegration,” she writes in Corruption in America. “Four years after Citizens United, wealthy individuals have far more political power than they did, and groups of individuals without money have less. A country founded on political equality and the fight against corruption is burdened by political inequality, corrupting individuals and institutions.”
Here is an excerpt from a recent interview:
Q: There is already controversy surrounding a replacement for Justice Scalia. Do you feel President Obama should nominate a new justice as soon as possible?
Teachout: Absolutely. It’s very important to have a full and functioning court. The idea of not having a nine-justice court for over a year is troubling. There are very serious issues now and serious ongoing constitutional questions. I’m hoping that Senators from both parties hear from their constituents that the need for a full court trumps partisanship.
Q: Republican Senators point to precedent saying [incorrectly] there hasn’t been a Supreme Court nominee by a president in his final year in office in eighty years. Yet, ironically, didn’t this Supreme Court largely ignore precedent in some of its biggest decisions?
Teachout: In both Citizens United and the case striking down the Voting Rights Act, the Roberts’ Court left precedent pretty far behind—along with common sense. From talking to people in my district, there is an incredible desire to overturn Citizens United. They believe the Supreme Court in the last decade has gotten money in politics entirely wrong. And the costs have been very high, as you see with these Super PAC elections.
Q: You’ve described Corruption in America as an “extended letter” to the conservatives on the Supreme Court. How does their narrow view of corruption clash with that of our Founding Fathers?
Teachout: On a superficial level, the court made a series of moves that don't make much sense. Like describing corruption as only an explicit deal. Or that we should treat corporate speech similarly to individual speech. On a very deep level, however, those decisions reflect almost an anti-government, anti-democratic sensibility.
Our Founders, far from perfect men, had the insight to know that democracy and corruption need real checks and balances. By corruption, they meant using public power for private ends. They didn’t mean only an explicit deal.
Q: Do you think the justices are motivated strictly by ideology or are they influenced by the elite circles in which they travel?
Teachout: It's hard to know. Justices arrive at decisions differently. But what unites them is they are all disconnected from the political process. The two decisions where they were terrible on money in politics were Buckley v. Valeo and Citizens United. Neither court had politicians on them. It’s a strange thing to want politicians on the court, but because of this disconnect they don’t exactly understand how money works or how power works. They seem to believe that politicians aren't really influenced by money.
Jake Whitney is a journalist based in New York. In addition to The Progressive, his work has appeared in The New Republic, The Daily Beast, San Francisco Chronicle, and many other publications.