Ken Klukowski

September 9, 2009 was a historic day at the U.S. Supreme Court. Meeting in special session, the Court considered a legal challenge pitting Barack Obama’s top Supreme Court lawyer against a living legend in a major First Amendment case that will forever shape how elections are conducted in America. And in her Supreme Court debut, Sonia Sotomayor gave the first hint of what kind of justice she will be.

In an unusual move, the Court cut short its summer recess, holding a special session to rehear new arguments in Citizens United v. FEC. The group Citizens United, run by public-interest veteran David Bossie, had produced documentaries critical of Hillary Clinton and Barack Obama during the 2008 election season, which the FEC then banned.

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But all eyes were on Justice Sotomayor in her first Supreme Court appearance. She questioned the issue of Citizens United’s free speech rights. At the end of the exchange, referring to the fact that all business entities are created by the state, Sotomayor commented that perhaps it was, “the Court’s error to start with … that the Court imbued a creature of state law with human characteristics.”

This raises eyebrows, because every right that Americans enjoy when running a business or acting as a group comes from every corporation being considered a “person.” That’s why the NRA or U.S. Chamber of Commerce or the Red Cross or Citizens United have the First Amendment rights to advertise, to speak out, to mail letters, or even to own property.

If those groups are not imbued with “human characteristics” by being treated as persons, then the government could permanently muzzle them, and not allow any groups to ever speak about politicians or public issues. Moreover, the government would be able to seize all of their assets (including property and bank accounts) at any time, search their records without a warrant, and even deny these organizations the right to file federal lawsuits.

We can only assume that Justice Sotomayor did not mean any of those things, since they would be an earthquake in American law that could completely destabilize our entire economic system.

But we won’t have to guess. Justice Sotomayor could be on the Court for the next 30 years, so we’ll have ample opportunity to learn exactly what Barack Obama’s pick for the Court believes on this and many other issues.

Our first indication will come when the Court decides the Citizens United case, expected to happen before the Court’s annual term starts on October 5.


Ken Klukowski

Ken Klukowski is a bestselling author and Townhall’s legal contributor covering the U.S. Supreme Court, and a fellow with the Family Research Council, American Civil Rights Union, and Liberty University School of Law.