Retired Supreme Court Justice Sandra Day O'Connor issued her own polite public dissent to the recently decided case on corporate political spending, telling law students that the court has created an unwelcome new path for wealthy interests to exert influence on judicial elections.
In her first public remarks on the controversial campaign money case, O'Connor said she believes the ruling creates "a problem for an independent judiciary."
In deciding Citizens United v. Federal Election Commission last week, the Supreme Court found that corporations should not be restricted from spending unlimited amounts on political commercials because to limit that spending would violate the First Amendment.
The ruling was a jolt to the lawyers and lawmakers who have been battling to curtail the corrupting influence of money in the political system, and who had found an ally on the Supreme Court in O'Connor, until she stepped down in 2006. The justice who replaced her, Samuel Alito, joined the 5-4 majority in last week's decision.
One wrinkle in the Citizens United case that has largely escaped notice, O'Connor said, is that the opinion has the potential to unleash more corporate spending in campaigns for state judgeships, a problem she has already been highlighting because of the potential for donations to have a corrupting influence on the legal process.
"This rise in judicial campaigning makes last week's opinion in Citizens United a problem for an independent judiciary," she told an auditorium of lawyers and Georgetown University law students in Washington. "No state can possibly benefit from having that much money injected into a political campaign."
The quandary of how to prevent campaign contributions from unduly influencing candidates for judgeships has been a pervasive problem that O'Connor has dedicated her post-Supreme Court years to solving.
The issue was highlighted most recently by a case in West Virginia featured in an ABC News investigation. In that instance, a mining executive waged a multi-million dollar advertising campaign to elect the swing justice on the West Virginia Supreme Court. The judge then presided over a case the executive's company had appealed to the court.
More than 80 percent of state court judges must face the voters in elections at some point during their time on the bench, O'Connor said.