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Friday, May 18, 2012

Scratching My Head Over the Inside Story of Citizens United

I am generally a fan of Jeff Toobin's journalism.  I really enjoyed The Nine and thought it was quite insightful about the dynamics of the current Supreme Court, and I always benefit from Toobin's pieces in the New Yorker.  And I am not generally a fan of the Supreme Court's Citizens United decision.  I find the First Amendment issues relating to campaign finance actually quite difficult, in the sense that there seem to me to be quite strong considerations on both sides of the ledger, and Citizens United came down rather too strongly on one side of the issue for my satsifaction.  Justice Stevens's dissent always seemed to me to have far the better side of the argument than Justice Kennedy's majority opinion in that case.

That said, I am quite puzzled by all the play that Toobin's piece on the inside story of Citizens United has gotten on the internet.  The rapportage is great, but the conclusion that Toobin suggests and that many in the blogosphere are running with -- that the Court's decision in that case resulted from the Machiavellian machinations of a diabolical Chief Justice -- seems to me to go well beyond the evidence that Toobin musters.

The basic story Toobin tells is that, at the conference after the argument in Citizens United, the justices voted 5-4 to reverse the decision below and rule in favor of Citizens United.  Chief Justice Roberts assigned the opinion to himself and circulated a draft that ruled on narrow grounds -- grounds that, crucially, would not require the Court to overrule earlier decisions such as Austin v. Michigan Chamber of Commerce.  But Justice Kennedy circulated a concurrence arguing that the case should have been decided on broader First Amendment grounds, other conservative justices decided they preferred that approach to the narrower approach reflected in the Chief's draft, and so Chief Justice Roberts reassigned the majority opinion to Kennedy.  Justice Souter later circulated a draft dissent that called out the majority for overruling precedent in a case in which no party had asked for precedent to be overruled.  But that dissent never saw the light of day because the majority responded by putting the case over for reargument on the question whether Austin should be overruled.  After reargument, the Court answered that question in the affirmative and ruled for Citizens United, 5-4, in a broad opinion written by Justice Kennedy over a blistering dissent by Justice Stevens.  (Justice Sotomayor had taken both Justice Souter's seat on the Court and his place among the dissenters.)

Where's the devious machination here?

It seems to me that the most charitable reading of Chief Justice Roberts's actions was that, though he agreed on the merits with the broader argument made by Justice Kennedy, he really preferred to decide the case on narrow grounds.  But when he found that he couldn't get five for a narrow opinion he decided to defer to the other justices in the majority (as to how broadly to frame the opinion) and go along with Justice Kennedy's position.  And he reassigned the opinion to Justice Kennedy because that was the surest way to get five votes on a single opinion.  And when Justice Souter objected to overruling precedent in a case in which the matter hadn't been briefed, the Chief Justice said, in effect, "good point," and led the majority to order the parties to brief the issue.

The least charitable reading of Chief Justice Roberts's actions actually isn't that different.  That reading is that the Chief Justice always wanted to decide the case in a maximalist opinion but that he misread the conference and mistakenly thought such an opinion wouldn't hold five votes.  But the reaction of his conservative colleagues to Justice Kennedy's concurrence made it clear he was wrong, so he asked Justice Kennedy to turn his concurrence, which reflected what Chief Justice Roberts really wanted to do all along, into an opinion for the Court.  And when Justice Souter objected to the process, Chief Justice Roberts led the majority to order reargument to remove any process objection, fully assuming that the reargument wouldn't change anyone's minds.

Even assuming the least charitable reading, was this really so devious?  Even if Chief Justice Roberts was confident that the outcome wouldn't change after reargument, he had to know he was taking at least some risk.  When the Court orders reargument to consider whether a case should be overruled, it does not always decide to overrule the case in the end.  Consider Patterson v. McLean Credit Union, where the Court ordered reargument on the question whether Runyon v. McCrary should be overruled but then, after reargument, reaffirmed Runyon and ruled against the plaintiff on narrower grounds.  And more fundamentally, if a majority of justices believe that a case that is before them requires reliance on a precedent that they believe satisfies the criteria for overruling, why shouldn't they order briefing on whether it should be overruled?

Runyon also shows that the order granting reargument did not magically "disappear" Justice Souter's dissent.  Justice Souter was perfectly free to publish a dissent from the order compelling reargument -- just as Justices Blackmun and Stevens (each joined by the other and by Justices Brennan and Marshall) did in Patterson.  Why Justice Souter chose not to do this says a lot about his sense of Yankee rectitude, I would guess, and maybe Chief Justice Roberts was taking advantage of that.  But I still don't see any dastardly deeds here.

Posted by Sam Bagenstos on May 18, 2012 at 09:45 AM | Permalink

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"But when he found that he couldn't get five for a narrow opinion he decided to defer to the other justices in the majority (as to how broadly to frame the opinion) and go along with Justice Kennedy's position. And he reassigned the opinion to Justice Kennedy because that was the surest way to get five votes on a single opinion."

Isn't that fairly common and perfectly normal to not have a majority, thus a 4-1-4 opinion? Why wouldn't Roberts have stopped at that and called it a day? This is why I don't think this particular reading holds water.

Posted by: anon | May 18, 2012 9:53:15 AM

I haven't had a chance to read the Toobin piece yet, but your argument seems to hold water. While this isn't the way things work at the Court on an average case, it is certainly not outside the realm of how they work from time to time. And Roberts' actions have nothing on the sorts of things Chief Justice Burger used to do, according to The Brethren (e.g., voting against his own views so that he would be in the majority and could assign the opinion to himself, which he would then water down).

Posted by: Charles Paul Hoffman | May 18, 2012 10:10:01 AM

I tend to agree with the post. I suspect Toobin's article is getting a lot of favorable attention because a lot of his audience starts off with the belief that Citizens United is an evil ruling that the conservatives foisted on the American people on behalf of big corporations. The decision is so evil, the thinking runs, that how it came about is not unlikely to involve a devious machination.

Anon asks:

Isn't that fairly common and perfectly normal to not have a majority, thus a 4-1-4 opinion? Why wouldn't Roberts have stopped at that and called it a day? This is why I don't think this particular reading holds water.

I think the Marks rule may explain this. The narrowest opinion in favor of the winning side becomes the rationale of the Court for purposes of the lower courts following a binding rule. 4-1-4 can be okay if the difference between the 4-vote plurality and the 1-vote concurrence is just the breadth of the opinion: The narrower 1-vote concurring opinion becomes the rule lower courts must follow. If there are 4 votes on constitutional grounds and 1 vote on statutory grounds, however, then it's not clear that there is an opinion that is binding on lower courts under Marks: It's not clear that you can compare the scope of a constitutional ruling and a statutory ruling, as they are just different kids of rulings. So one problem may have been that a 4-1-4 with a constitutional/statutory split might have left uncertainty as to the rule to follow.

Posted by: Orin Kerr | May 18, 2012 11:44:15 AM

It is unfair to the parties, and conceivably to the world at large, to resolve a case on a ground none of the parties has argued, or, if the court is the Supreme Court, on a ground not fairly set out in the questions presented. That's why the correct thing to do, if a court is tempted to decide a case on a new ground, is to ask the parties to address that new ground in supplemental briefing, or, if the court is the Supreme Court, in reargument following reframing of the questions presented.

That's what Chief Justice Roberts appears to have done ... nothing really wrong with that, is there?

Posted by: Mark Regan | May 18, 2012 1:03:43 PM

It depends on your theory of the adversary system and of the role of the courts. If the court's job is simply to resolve the case as presented by the parties, then the Court's "reaching out" for the constitutional issue not raised or decided below or presented here may be troubling. If the court's job is to resolve the case in the most appropriate way to get to the right result and make the best, most coherent law going forward, then there was nothing wrong with what the Court did.

Part of the perceived problem is that Roberts is linked to the whole "calling-balls-and-strikes" nonsense. Umpires only call the pitch that's thrown; they don't reach out to call something a ball or strike before the pitcher throws the ball or the batter swings. So reaching out in this way, while perfectly proper in an rational judicial system, is inconsistent with what Roberts purported to believe in.

Posted by: Howard Wasserman | May 18, 2012 1:16:06 PM

I agree that the piece was interesting but overwrought. I read it as a warning to a sympathetic audience that the Court may 'reach out' on the constitutional issues raised by Fl. v. HHS. Otherwise, the sententiousness seems to serve no real purpose.

Posted by: Nicole Huberfeld | May 18, 2012 3:27:38 PM

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