In her first appearance on the Supreme Court bench, newly minted Justice Sonia Sotomayor made some comments that have renewed questions regarding her judicial philosophy.
During oral argument on the campaign-finance case Citizens United v. Federal Election Commission, she suggested that the Court should revisit more than 100 years of precedent, questioning whether corporations were properly considered “persons” entitled to rights under the Constitution. However, the reasoning behind this suggestion is questionable, given that it is based on the contention that judges created corporations as “persons” and thus can reverse that decision. This assertion is inaccurate as a matter of history and current practice. Corporations are chartered by state legislatures and are “creatures” of the legislative branch—not the judiciary. From the founding period, they have been considered artificial “persons,” a doctrine that has strong roots in the common law. Arbitrarily depriving them of their long-possessed rights through judicial decision making would constitute an improper intrusion on the authority of both the states and the legislative branch. Accordingly, it again raises the question whether Justice Sotomayor’s view of the judicial role is consistent with what was contemplated by the Constitution. Only time will tell.
Douglas Smith is an adjunct scholar at the American Enterprise Institute.