The Speech That Kills the World

Countering the Supreme Court’s Right-Wing strategy

NOTE: Within this text, wherever gender is not key to the explanation, I am using the Elverson ey/em construction of the Spivak Pronouns.

Before doing some research, I was convinced that there were grounds to impeach three Supreme Court justices. I believed that Roberts and Alito had issued incompetent decisions that were clearly beyond the evidence provided and that Thomas had put himself in a position of conflict of interest in several cases. These are not illegal per sé (go figure); but, they are not consistent with the Constitutionally established bar for a federal judge which is this:

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour …

This makes sense since a federal judge has a lifetime appointment. It seems a fairly light requirement that their privileged tenure be one of good behavior. Over the life of this Good Behavior Clause, there has been much controversy. Thomas Jefferson believed that this clause meant what the average person might believe: It should be easier to end a lifetime appointment than a four year appointment (as argued by Saikrishna Prakash and Steven Douglas Smith in their article How to Remove a Federal Judge). Alexander Hamilton, on the other hand, interpreted the phrase to mean that the judge’s position should be secure and subject only to impeachment for high crimes and misdemeanors (as argued by Gale in the Yale Law Journal). Judges, as would be expected, have agreed with Hamilton.

While judges have argued that “good behavior” is a very high bar, anyone with a fair understanding of the English language understands that not good behavior is a much lower bar than high crimes and misdemeanors which is the bar for the four year term of the President and other federal officers. The U.S. judiciary has played a key role in defining and redefining how difficult it must be to remove a federal judge and this has established a fortress around the judiciary. We may see this as an impediment constructed by self-serving judges or we may see this as an opportunity.

Incompetent or Nuanced

I’m going to set aside Justice Thomas for now and focus on Roberts and Alito. The Citizens United v. FEC decision is often called out as a fundamentally incompetent decision and that argument may be made persuasively. Is that bad behavior? Even reasonable scholars disagree. It is true that the decision was originally issued on the facts of the case as presented, but arguments within the court led to a request to re-argue the case twice. Each time, the plaintiffs expanded their presentation and the court accepted those additional facts leading to a decision utterly beyond the scope of the original dispute. Nonetheless, the incompetence is not obvious.

It is, on its face, simply a natural extension of Buckley v. Valeo wherein the concept that money is speech was first adjudicated. If money is speech, then limiting spending limits speech. The incompetence of the decision is often tied to the unnecessarily broadened scope and the inexplicable sociological exposition regarding the effect of propaganda on the public. Despite this, the competence of the decision is not fundamentally disputable.

In the recent case, Americans for Prosperity Foundation v. Bonta, Chief Justice Roberts penned a decision that throws into question if it will ever be possible to determine what wealthy people are supporting what Right-Wing juggernauts. In Brnovich v. Democratic National Committee, Justice Alito wrote, essentially, that all voter restrictions tied to voting schedules and collection protocols are allowed as long as they don’t clearly identify who is being excluded.

In many of these decisions, the incompetence is tied to the fact that individual justices bring to bear their own unproved expertise in economics, sociology and history which go significantly beyond the case presented. In Shelby County v. Holder, Chief Justice Roberts wrote:

Regardless of how to look at the record no one can fairly say that it shows anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the nation.

Of course Roberts was ignoring the fact that this was true only because of the full implementation of the voting rights act.

I brought up the Supreme Court in the first place because I was not the only one saying that this Supreme Court is going to bring down the nation if we don’t correct it. Progressive voices like Sam Seder and Bernie Sanders have suggested that packing the Supreme Court might be a good idea in order to make up for the corrupt packing on the Republican side. Even some Progressive-leaning neoliberal voices like Chris Hayes have seemed open to such a move. I’ve always preferred the more direct impeachment of the Right-Wing idealogues; and, I still believe that cases may be made for impeaching specific Supreme Court Justices. Unfortunately, that path, in the current climate, is very risky and may establish unwanted precedents. At least for now, I am imagining a different direction.

We’re All Conservatives Now

What if we were to just recognize the Right-Wing drive to allow the astoundingly rich to control our government and our lives? What if we were to accept that the rich and powerful will naturally exercise the privileges that override all other rights? We are in the middle of an odd revolution wherein the wealthy are temporarily supporting Democrats over Republicans. Let’s give in and clearly identify our pampered and powerful overlords.

Let us take seriously the claim of our courts that a multi-billionaire may do whatever ey pleases. Let us accept that any individual with a billion dollars may sway the government in any way that ey wishes. Let us accept that a person with a billion dollars has more free speech than a person with a hundred thousand dollars. Let us recognize that as the root cause of a real problem. Let us level the playing field by making an estate of a billion dollars as ridiculous as it appears to be to the average person. Let us settle on a reasonable upper limit for wealth. What might it be? Where do you draw the line? Well, we draw the line the way we always draw a line: We pick a spot that looks reasonable, we draw a line and see if that works. If it does, we live with it. If it doesn’t, we move it. Someone will throw out a reasonable number for total wealth and we’ll try it. I suggest ten million dollars.

Any person with a total wealth of ten million dollars is living pretty comfortably. Why would anyone need more? Mortimer J. Adler, in his book Ten Philosophical Mistakes, presents a persuasive definition of morality isolated from any notion of religious dogma. It is basically a common sense resolution to the question of what one ought to do. I encourage my reader to find a copy and read it. Some parts are a bit stodgy but his argument for the self-evident normative principle is compelling. The upshot is this:

One ought to acquire whatever is needed to sustain life and nothing else.

This claims that each person has a moral right to acquire what they need including food, clothing, shelter, modest necessary amenities, and a reserve of resources for lean times, recreation and retirement. Beyond that, a third house, a yacht, a large plot of land that could be used for crops but lies fallow for one’s own entertainment, is literally immoral.

This ethic may be the basis for a public policy that sets out to level this field and put all people on equal free speech footing. Let these Supreme Court decisions deliver the message: Extreme wealth is extreme power is a contravention of free speech generally. Let us take that message to heart and eliminate that danger simply by assuring that there are no individuals with unassailable power and unlimited speech. In so doing, we force all individuals to participate in the community. If Charles Koch wants to spread Right-Wing propaganda or establish a reactionary think tank, let him take his $10 million and organize a number of like-minded associates in order to accumulate enough resources for that task. If ExxonMobil wants to buy climate legislation, let it form a cooperative of like-minded small corporations for that purpose.

Let us elect Progressive candidates to Congress who will reject the ridiculous fiction that people may join together to form a fake person of unlimited rights and longevity in the form of a corporation. If such a fake person is to be formed, then eir total wealth must be limited to $10 million just like every other person. A cooperative, on the other hand, comprised of numerous individuals working together for a common goal, may be allowed more resources; but, the cooperative itself would not have the rights of an individual person. Only the actual persons participating in the cooperative would be recognized in that way.

If the immoral concept of unlimited wealth is re-legislated by the Supreme Court, then maybe we must impeach or expand; but for now, I’m liking the idea of simply calling the Right’s bluff. Let us agree with them fully and address this problem with a tax on wealth (a form of property tax in order to gradually level the wealth gap), a tax on market speculation, and a progressive tax on income. Thereby, we eliminate astounding wealth for a few in favor of entirely manageable wealth for many. The corporate mogul, unable to stockpile billions of dollars, would have to route profits back into the company. Research and development would be rejuvenated, and reasonable salaries and pensions could be revived. The day trader, unable to gain substantially from short-term transactions, would move to more stable companies offering reasonable dividends. Stocks that did not offer dividends would become undesirable and stability would be valued over growth.

In a functioning Democracy, let us require individuals to work together on equal footing to form coalitions of like-minded citizens in order to sway public opinion. Let them work as near equals and let those who seek a protective father figure as leader, mature past that juvenile fantasy and learn by example from the adults seeking to progress to a better world for all.

Julian S. Taylor is the author of Famine in the Bullpen a book about bringing innovation back to software engineering. Available at or orderable from your local bookstore. Rediscover real browsing at your local bookstore. Also available in ebook and audio formats at Sockwood Press.

This work represents the opinion of the author only.