New Yorker: How John Roberts Orchestrated Citizens United

lcjjdnh · May 14, 2012

http://www.newyorker.com/reporting/2012/05/21/120521fa_fact_toobin?currentPage=all

Jeffrey Toobin provides an inside look at how Roberts turned a case the court could have resolved as a statutory question into a constitutional landmark:

At this point, the vagaries of the Supreme Court calendar played a part in the resolution of the case. Citizens United was argued near the end of the term, in late March. (The last arguments are usually at the end of April, and the decisions are released by the end of June.) So there was not a lot of time for the Justices to reach a consensus. At their initial conference, the vote was the same as for Wisconsin Right to Life, with Kennedy joining the four other conservatives.
A private drama followed which in some ways defined the new Chief Justice to his colleagues. Roberts assigned the Citizens United opinion to himself. Even though the oral argument had been dramatic, Olson had presented the case to the Court in a narrow way. According to the briefs in the case—and Olson’s argument—the main issue was whether the McCain-Feingold law applied to a documentary, presented on video on demand, by a nonprofit corporation. The liberals lost that argument: the vote at the conference was that the law did not apply to Citizens United, which was free to advertise and run its documentary as it saw fit. The liberals expected that Roberts’s opinion would say this much and no more.
At first, Roberts did write an opinion roughly along those lines, and Kennedy wrote a concurrence which said the Court should have gone much further. Kennedy’s opinion said the Court should declare McCain-Feingold’s restrictions unconstitutional, overturn an earlier Supreme Court decision from 1990, and gut long-standing prohibitions on corporate giving. But after the Roberts and Kennedy drafts circulated, the conservative Justices began rallying to Kennedy’s more expansive resolution of the case. In light of this, Roberts withdrew his own opinion and let Kennedy write for the majority. Kennedy then turned his concurrence into an opinion for the Court.
The new majority opinion transformed Citizens United into a vehicle for rewriting decades of constitutional law in a case where the lawyer had not even raised those issues. Roberts’s approach to Citizens United conflicted with the position he had taken earlier in the term. At the argument of a death-penalty case known as Cone v. Bell, Roberts had berated at length the defendant’s lawyer, Thomas Goldstein, for his temerity in raising an issue that had not been addressed in the petition. Now Roberts was doing nearly the same thing to upset decades of settled expectations.
As the senior Justice in the minority, John Paul Stevens assigned the main dissent to Souter, who was working on the opinion when he announced his departure, on April 30th. Souter wrote a dissent that aired some of the Court’s dirty laundry. By definition, dissents challenge the legal conclusions of the majority, but Souter accused the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.
Roberts didn’t mind spirited disagreement on the merits of any case, but Souter’s attack—an extraordinary, bridge-burning farewell to the Court—could damage the Court’s credibility. So the Chief came up with a strategically ingenious maneuver. He would agree to withdraw Kennedy’s draft majority opinion and put Citizens United down for reargument, in the fall. For the second argument, the Court would write new Questions Presented, which frame a case before argument, and there would be no doubt about the stakes of the case. The proposal put the liberals in a box. They could no longer complain about being sandbagged, because the new Questions Presented would be unmistakably clear. But, as Roberts knew, the conservatives would go into the second argument already having five votes for the result they wanted. With no other choice (and no real hope of ever winning the case), the liberals agreed to the reargument.
On June 29, 2009, the last day of the term, the Court shocked the litigants—and the political world—by announcing, “The case is restored to the calendar for reargument.” The parties were directed to file new briefs. In plain English, the Court’s order told the parties that the Justices were considering overruling two major decisions in modern campaign-finance law. Most important, the Court was weighing whether to overturn its endorsement of McCain-Feingold in the McConnell case of 2003. As every sophisticated observer of the Court knew, the Court did not ask whether cases should be overruled unless a majority of the Justices were already prepared to do so. And Roberts and his allies were so impatient to overturn these precedents that they were not even going to wait for the first Monday in October. (An early argument would also put a decision in place well before the 2010 elections.) The second argument in Citizens United was set for September 9, 2009.
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Greenhorn · May 14, 2012

Those darn liberal activist judges.

TigerVols · May 14, 2012

Good thing all those liberals in all the newsrooms across America have gone to the mat to explain the political implications of this decision, and how it came about, and who it supports.

Just like they will do when this same cabal overtunes "Obamacare."

Dick Whitman · May 14, 2012

FWIW, two things:

1) Toobin has a book coming out, "The Oath," about Obama vs. the Roberts Court and the ideological battle. To me, it's almost like FDR vs. the initially obstructionist New Deal Court.

2) Citizens United is an arguably correct decision. The follow-up decision, which invalidated Arizona's public finance match law, is a fucking train wreck, and is a very black mark on Roberts's tenure.

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New Yorker: How John Roberts Orchestrated Citizens United

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New Yorker: How John Roberts Orchestrated Citizens United

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