A disturbing aspect of the jurisprudence of justices on the left of the Supreme Court is their unwillingness to grant constitutional protections to mediating institutions. This hostility to mediating institutions—structures that help individuals join together to exercise power independent of the state—was demonstrated both in Citizens United and Hobby Lobby. In Citizens United, four justices would have prevented corporations from exercising the same First Amendment rights as individuals to express opinions before an election. In Hobby Lobby Justices Ginsburg and Sotomayor would have held that even closely held corporations could not obtain the protections of the Religious Freedom Restoration Act.
The measure of these justices’ hostility lies in their Houdini-like efforts to escape the established doctrine that supported the rights of corporations in these cases. The majority decision in Citizens United rested on the long First Amendment tradition of protecting the freedom of speech rights of corporations. For instance, New York Times v. Sullivan, offering a First Amendment shield against libel actions against public figures, involved a corporation. Moreover, the history of commercial speech rights is almost entirely that of corporate rights. The majority in Hobby Lobby relied on the Dictionary Act, which expressly directs courts to include corporations within the definition of a person unless the context suggests otherwise.