I’m reading Jeffrey Toobin’s new book The Oath: The Obama White House and the Supreme Court and there is some very interesting information about the Supreme Court’s Citizens United ruling that I wasn’t aware of. There are lots of fascinating facts about how the case was decided that are worth taking a look at. Toobin discussed much of this in an article in the New Yorker.
First, I did not know that this was Justice Sotomayor’s first case as a justice, or that it was argued a month before the Supreme Court’s term actually began (on Sept. 9, 2009, when the court’s term famously begins on the first Monday of October). But that was actually the second time the oral argument took place. It was first heard on March 24, 2009, during which Citizens United, the plaintiffs, argued only that the court should reach a very narrow conclusion on an “as-applied” basis that the McCain-Feingold campaign finance law did not apply to non-profit organizations.
Perhaps some background is required here. The McCain-Feingold law (also known as the Bipartisan Campaign Reform Act, or BRCA) set limits on electioneering communications. It said that corporations could not fund television commercials in support or opposition to a candidate running for office within 30 days of a primary election or 60 days of a general election. Citizens United made a movie about how Hillary Clinton was evil and wanted to show it on cable TV on video on demand right before the 2008 election. The FEC ruled, on the basis of the BCRA, that they could not do so and that is what prompted the lawsuit.
The attorney for Citizens United was Ted Olson and he made a very narrow argument. He did not argue that the court should overturn the law, only that they should rule that the law did not apply to documentaries or to non-profit organizations. But during the March 24 oral argument the conservatives on the court made it very clear that they wanted to overturn those limitations entirely. He was only arguing that, as a matter of statutory interpretation, the law did not apply in this particular case, not that the law should be overturned.
But after oral argument, during their weekly conference, the conservatives had five votes to go much further than even the plaintiffs had argued. They didn’t want to just interpret the statute in a narrow way, they wanted to overturn the law entirely (not the entire BCRA, but the entire section dealing with TV commercials immediately before an election). Roberts initially was to write the majority opinion, which was going to be narrower than that, while Kennedy wrote a much broader concurring opinion saying that the court should have gone much further. Toobin explains what happened:
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.
And he’s right about that. You can read the transcript of that oral argument here. Roberts goes after Goldstein hard because the question the court agreed to hear was only one of a narrow procedural issue but Goldstein was arguing that the court should decide the case on the merits instead, which would result in a much broader ruling rather than a narrow one. And remember, it’s conservatives who are continually arguing that the court should only decide a case on the narrowest grounds that it can. Anything more would be “judicial activism” or “legislating from the bench.”
Yet in this case, the conservatives on the court were so adamant that they wanted to overturn the law that they refused to decide the case on the narrow grounds that the plaintiffs themselves had argued in favor of. Justice Souter was rightly going to hammer them for that inconsistency in his dissenting opinion, but Roberts didn’t want them to look bad so he did something very rare — he ordered the case to be reargued in the fall of 2009, with the much broader question the court wanted to answer, and for some reason he scheduled that argument for Sep. 9, 2009, a month before the term started.
That was Justice Sotomayor’s first day on the court. It was also, interestingly, not only Elena Kagan’s first oral argument before the Supreme Court, it was the first argument she had ever made in any court. That’s right, Kagan had never practiced in a court of law at all. She was an academic and was the dean of Harvard Law School, but had never actually practiced law. Her very first argument in court was before the Supreme Court, and in a case where the outcome was already decided. The five conservative justices had already made clear how they were going to vote and nothing Kagan said could possibly change the outcome.