Sotomayor’s ‘Provocative Comment’ Questioned Corporate Law Foundations

A comment by the U.S. Supreme Court’s newest justice last week questioned precedent dating to the 19th century that gave corporations constitutional rights.

The Wall Street Journal has the story. “In her maiden Supreme Court appearance last week, Justice Sonia Sotomayor made a provocative comment that probed the foundations of corporate law,” the newspaper reports.

Sotomayor spoke during arguments on a First Amendment challenge to campaign finance restrictions barring broadcast of “electioneering communications” by corporations in the days before elections.

Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with... [imbuing] a creature of state law with human characteristics."

The story cited an 1886 tax case in which attorneys were informed by the chief justice that they could skip arguments on whether the equal protection clause applied to corporations because "we are all of opinion that it does." Opinions that followed expanded corporate rights, although confusion remains over protection for corporations, the story says.

In the current case, Citizens United v. Federal Election Commission, corporate rights are likely to prevail. News stories published after the oral arguments said the court appeared ready to strike down or curtail the restrictions on corporate campaign spending.