You are the end of an era. Not just superficially, not just because you were the last World War II veteran who will ever sit where you sat. Far beyond that, you represent the greatest tradition in the United States Supreme Court -- a justice profoundly deepened and broadened by his elevation to and experience on the Bench. You shared this greatness with your predecessor, Earl Warren, who like you came to the Bench a Republican, and who like you, began to see "justice" in a far more multidimensional and nonpartisan way. You started out favoring the death penalty, and no doubt after reviewing too many disturbing writs for certiori, only a fraction of which the Court was able to hear, reversed your position, having acquired the humbling and shocking knowledge that the administration of the death penalty in the United States is sloppy and kills innocent people. But it is not only we the people who will miss you -- our Constitution, and especially the Fourteenth Amendment, will miss you. Just how much was highlighted in your magnificent valedictory opinion, your stinging dissent from the majority in Citizens United v. FEC.
What a spectacular fall from grace the Supreme Court has undergone in the trajectory from Earl Warren to John Roberts. And no aspect of Constitutional law more clearly illustrates this sad trajectory than that touching on the Fourteenth Amendment. For Earl Warren the Fourteenth Amendment essentially meant that all rights guaranteed by the Bill of Rights applied to all Americans, and state law could not trump the Constitution.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
That meant for Earl Warren the end of segregation (Brown v. Board of Education) and the end of gerrymandered white supremacy (Reynolds v. Sims).
Fast forward half a decade to Citizens United v FEC, a case personified in the dueling opinions of Justice Kennedy and Justice Stevens. This is not Earl Warren's 14th amendment any longer. Now, under the Roberts court, the word "person" in the Fourteenth Amendment applies -- mirabile dictu -- to corporations. How did corporations come to be "persons" protected by the United States Constitution? Through a nasty perversion of Supreme Court jurisprudence that first reared its ugly head in a footnote to an 1886 case, Santa Clara County v. Southern Pacific Railroad. Railroad lawyers had been arguing for decades that since corporations were considered "persons" under the law, that they should be granted due process under the Constitution. For decades, the justices of the Supreme Court held this argument to be risible. But over time as members of the railroad bar were elevated to the high court, opinions changed, and beginning with the footnote, there has been a gradual increase of the personification of corporations which finally reached its apogee in Citizens United v. FEC, and the shocking majority opinion rendered by Justice Kennedy.
Now, my fellow Americans, under the Roberts Court, the Fourteenth Amendment not only applies to corporations, it gives corporations full free speech rights in political campaigns. Sure, corporations are gigantic totalitarian organizations -- but never mind. They are "artificial persons," and therefore, according to John Roberts' 8th grade syllogism, they are therefore "persons." And since the Fourteenth Amendment speaks of "persons" and does not specifically restrict "persons" to living breathing persons, therefore the literal interpretation of the Constitution requires that the Court extend the full protections of the Constitution to corporations. To which John Paul Stephens said, in one of the more biting opinions of his career, poppycock.
Wrote Stevens:
The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.
And then this, with bite:
Corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their "personhood" often serves as a useful legal fiction. But they are not themselves members of 'We the People," by whom and for whom our Constitution was established.
So we will miss your voice, your honesty, your vision of justice. We can only dread the future of the Roberts court. Chief Justice Roberts' eloquent praise of stare decisis at his confirmation hearings were apparently like telling a woman she is beautiful in order to get her into bed. He has achieved his objective, and stare decisis is now being trashed in the name of an unprecedented corporatism, in which corporations will now control our political system. The boys from the Federalist Society are now in charge of the Supreme Court, and it's gonna be hell to pay.