Out today from The New Yorker is a must-read excerpt from Jeff Toobin’s forthcoming (in September) book The Oath: The Obama White House vs. The Supreme Court. The excerpt recounts insider details about the process by which the Court decided the Citizens United campaign finance case.
The theme of the piece is that Chief Justice Roberts orchestrated the case’s metamorphosis from a narrow ruling about statutory construction to a much broader constitutional decision with sweeping implications for campaign finance.
I should disclose that I am naturally inclined towards that reading of the history. I think that the Chief Justice is quite conservative and a brilliant tactician, including in undoing significant pieces of the legacy of the Court’s O’Connor era. I also disagree with the Citizens United decision.
But despite that, while the article is a fascinating and full accounting of the case and the background of the Court’s rapid movement to the right, the facts reported by Toobin don’t seem to support his conclusions about the Chief Justice.
By way of brief background for readers who have forgotten it, in Citizens United the Court originally agreed to decide whether a particular “movie” critical of Hillary Clinton was subject to campaign finance regulation. But the Court subsequently ordered reargument on the question whether the relevant restriction on corporate expenditures in elections violated the First Amendment. By a vote of five to four, it then invalidated the statute, holding that corporations and unions have a First Amendment right to engage in independent campaign expenditures.
Toobin reports the following behind-the-scenes details as they relate to the Chief Justice:
After the first argument on the statutory question, “Roberts assigned the opinion to himself,” and “did write an opinion roughly along [the] lines” of holding that the movie was not covered by the statute.
By contrast, Justice “Kennedy wrote a concurrence which said the Court should have gone much further” to rule for Citizens United on broad constitutional grounds.
“But after the Roberts and Kennedy drafts circulated, the conservative Justices began rallying to Kennedy’s more expansive resolution of the case,” leading Roberts to “withdr[a]w his opinion and let Kennedy write for the majority.”
After strident protests from the more liberal Justices that the Court was deciding a major constitutional question without briefing or argument, Roberts “agree[d] to withdraw Kennedy’s draft majority opinion and put Citizens United down for reargument” on the constitutional issue.
After the second argument, “Roberts assigned the opinion in Citizens United to Anthony Kennedy.”
From those facts, Toobin reasons that, “[e]ven without writing the opinion, Roberts, more than anyone, shaped what the Court did.” Reargument, he says, was “a strategically ingenious maneuver”; giving Kennedy the opinion after reargument “was another brilliant strategic move.” Because corporations favor Republican candidates, Toobin concludes: “So, as the Chief Justice chose how broadly to change the law in this area, the real question for him, it seems, was how much he wanted to help the Republican Party. Roberts’s choice was: a lot.”
That does not seem to follow. Take the results of the first argument. The Court’s five conservatives agreed that Citizens United should prevail, but divided on whether to resolve the case on narrow statutory or broad constitutional grounds. The Chief Justice both voted for the former and assigned the opinion to himself to try and control the reasoning. That is the opposite of the narrative in which he is attempting to produce the broader result.
But the Chief Justice lost his majority to Kennedy’s broader constitutional opinion. That happens. While Toobin calls the draft Kennedy opinion a “majority,” he does not report that the entire majority switched to Kennedy’s opinion. It appears that Kennedy may have had only a plurality. The conservatives have repeatedly divided on how quickly to move the law to the right, and the Chief Justice has been one to favor moving more slowly – recall Justice Scalia’s biting criticism of “faux judicial modesty.”
In response to Justice Souter’s criticism that the Court should not be deciding the constitutional question without briefing and argument, the Court set the case for reargument. While Toobin describes Roberts as having made that decision alone, I don’t believe that is possible: the Chief Justice does not have that power. But in any event, even if he did, that decision does not seem like an effort to decide Citizens United as broadly as possible as quickly as possible.
After the reargument, the Chief Justice assigned the majority to Kennedy. That was not much of a tactical move – given the case’s history, it was the only realistic possibility. The conservatives had voted to decide the case on the broader constitutional ground. Kennedy had already written an opinion deciding the case on that basis that had the support of several members of the majority. It would have been fairly insulting for Roberts to take the assignment away.
The post-Citizens United history also seems to undermine Toobin’s take. Soon after Citizens United, in a suit by the RNC, a three-judge district court held that Citizens United did not undermine the Supreme Court’s ruling in McConnell that Congress may restrict contributions to political parties. The court said that only Congress or the Supreme Court could revisit that question. When appealed to the Supreme Court, six Justices summarily affirmed, refusing to revisit that aspect of the Court’s campaign finance jurisprudence. The Chief Justice was in the majority, with Justice Alito and the Citizens United dissenters; Justices Scalia, Kennedy, and Thomas would have heard argument. If the Chief Justice were actually leading the charge for revisiting campaign finance law, he presumably would not have voted to affirm.
It does seem fair to me to criticize the Chief Justice for voting to decide Citizens United on constitutional grounds. But that is a criticism that is just as applicable to the entire majority, as opposed to an indication of maneuvering by him. It also ignores that the alternative may have been no clear holding whatsoever – with dueling members of the majority articulating inconsistent rationales that left the law in flux.
It is also a criticism that is deeply rooted in a belief that the Citizens United ruling is wrong on the merits, as opposed to an objective view that the Court should never issue broad constitutional rulings when it can avoid them. If you instead agree with the ruling, that criticism seems fairly empty. The majority’s view is that the statute imposed a significant restriction on a basic First Amendment right: participating in elections. More broadly, the majority believes that the Court’s prior precedents in this important area are fundamentally flawed. It is not surprising that they want to correct those perceived errors — on what everyone agrees is a critical question — as quickly as possible.
Imagine if the shoes are reversed in 2018. Justice Kennedy retires and is replaced by Kamala Harris. The Court hears a case that it could decide on narrow grounds, or it could go further and overrule Citizens United. Will progressives really contend that the new and more liberal majority should leave that decision standing? I don’t think so. They will want the Court to get the decision “right.” And if the senior Justice in the majority votes that way and assigns the opinion accordingly, I don’t think it will be because she is trying to help the Democratic Party as much as possible.
Others may disagree. And in all events, as I mentioned, you must read the article and buy the book. The article is a fascinating read, and it promises much more to come.