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Feb 02 2013

Roberts’ Convenient Loss of Memory

Still reading Jeffrey Toobin’s new book, The Oath: The Obama White House and The Supreme Court, and found this very interesting quote from Chief Justice John Roberts in the chapter about the ruling in Citizens United v FEC. Legal experts have long regarded Roberts as an advocate of judicial restraint. That’s why his ruling in the health care reform case was not all that surprising given his past statements. But it makes it very difficult to explain his actions in Citizens United.

Not long after his confirmation to the Supreme Court, Roberts gave a talk at Georgetown University in which he laid out his vision for a less divided court. The key to that, he said, was for the court to make its ruling on “on the narrowest possible grounds.” And he said plainly:

“If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case.”

But in Citizens United, the court could have ruled on far narrower grounds. Not only was it not necessary for the court to overturn the bulk of the McCain-Feingold law and declare that corporations could spend unlimited amounts of money to influence the outcome of a campaign by flooding television with commercials, the petitioners in the case (Citizens United itself) didn’t ask them to do that. They only argued that the court should rule that the limitations on pre-election ad buys do not apply to non-profit organizations or to documentaries, but only to TV commercials.

There was no reason for them not to rule on those narrow grounds, one way or the other. The questions they presented for the case were solely addressed to that issue and the oral argument focused solely on that issue. But the five conservatives on the court were clamoring to go further, to overturn all limits on corporate spending. In order to do so, they had to overturn a century worth of both statutory and judicial precedent that went all the way back to Teddy Roosevelt. And they had to order that the case be reargued in the next term. They went to incredibly unusual lengths to go way beyond what the parties in the case asked them to do.

Judicial restraint? Not even close.

9 comments

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  1. 1
    drr1

    I don’t know where people get the idea that Chief Justice Roberts is some sort of judicial minimalist. Time and again, he’s shown himself willing to set aside decades of established law to achieve the ends he seeks. That he does it while claiming fealty to judicial restraint and pretending to leave precedent standing means nothing. He picked up right where his predecessor left off, and hasn’t missed a beat. By the time he’s finished, if he has his way, the constitutional and legal landscape won’t look anything like it did in 2005.

  2. 2
    Nihilismus

    You realize that even if they had decided the case on narrower grounds, it would have signaled to corporate lawyers that more of the campaign finance restrictions could be ruled unconstitutional? Within less than two years (i.e., before another campaign season), another case would have gone up the Supreme Court, with a factual scenario that would have required consideration of the broader issue.

    Supreme Court justices don’t overturn laws. They merely resolve cases and controversies, and by doing so, indicate to people how similar cases and controversies will be resolved by them. Whether they do so coyly (e.g., “whatever the merits of petitioner’s argument that . . . , we need not decide at this time”) or explicitly, it doesn’t really matter, except for those plaintiffs who might lose in the lower courts before further Supreme Court guidance is given, and who can’t afford to appeal.

    The point is, while it makes sense to argue that an opinion was substantively wrong, it is mostly pointless to get worked up on whether it was “too broad” for that case.

    Yes, Robert’s earlier statements made his broad opinion in Citizens United hypocritical, but it’s not like we’d be better off if such a broad opinion was delayed until the next election cycle.

  3. 3
    Michael Heath

    drr1 writes:

    I don’t know where people get the idea that Chief Justice Roberts is some sort of judicial minimalist.

    I doubt hardly anybody who closely follows the Supreme Court actually believes that.

    It is important to note that in both his Supreme Court confirmation hearings, to be a justice and then the Chief Justice, Mr. Roberts repeatedly asserted he was a minimalist. We now know he was either lying back then or has since changed his mind and lies now if continues to assert he’s a minimalist.

    Given conservatives both lie and not closely follow events (like reading opinions), it’s not surprising his political allies continue to falsely assert he’s a minimalist. Another group who falsely spreads this lie are non-conservative pundits in the main-stream media who pose as experts of the Court but actually aren’t, or are also willing to spread an accommodationist lie to maintain a false sense they lack bias.

    This particular lie about minimalism is really no different than conservatives arguing against so-called judicial activism when in fact by the only objective measure to determine such, it’s generally the conservatives who are far more prone to overturning legislation than non-conservatives.

  4. 4
    D. C. Sessions

    Any time the term “judicial activism” comes up, I cite Citizens United as possibly the bext example in living memory. I’ll even concede that it may well have been rightly decided, but to anyone who objects I ask for a better example of the Court pursuing its own desired result even though it wasn’t what either of the parties argued.

    Not exactly “calling balls and strikes,” as one nominee described the role of a USSC Justice in confirmation hearings.

  5. 5
    Michael Heath

    D.C. Sessions:

    Any time the term “judicial activism” comes up, I cite Citizens United as possibly the bext example in living memory.

    I’m too young too cite Brown v. Board of Education; but not too young to cite Bush v. Gore as a case which competes with Citizens as a ‘best example’.

  6. 6
    D. C. Sessions

    I’m too young too cite Brown v. Board of Education; but not too young to cite Bush v. Gore as a case which competes with Citizens as a ‘best example’.

    How so? I’ll grant that it was a crappy bit of law (I mean, directing in the ruling that it was so bad that it should not be cited as precedent?) but at least it was a choice between the arguments presented by the parties. Not just built from the ground up from five fecal fantasies.

  7. 7
    Nihilismus

    @6 D.C. Sessions

    I’ll grant that it was a crappy bit of law (I mean, directing in the ruling that it was so bad that it should not be cited as precedent?) . . .

    The relevant quote from Bush v. Gore is this:

    The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

    The consideration of the majority was limited to the features of the Florida recount process. One of the questions was “is equal protection violated by the recount process as it is?” In order to answer this, the Court had to look at what the details of the process were and evidence of the results of different counting standards. In another case, the process would be different. Maybe the process would appear to be vague yet evidence of disparate results might not materialize. This might change how the justices rule.

    The justices were not stating that no other court could use the case as precedent. Rather, they were emphasizing the fact that electoral equal protection cases are complex and that they were only ruling based the particulars of that case. They were letting people know they weren’t articulating a broad principle that could be applied to many cases, but rather they were only focusing on the nuances of that particular case, and if another court wanted to use it as precedent, they were cautioned to make sure that the circumstances were similar.

    Other courts could use Bush v. Gore as precedent if circumstances were sufficiently analogous. They can even use it as precedent if the circumstances were not analogous — a determination that a higher appellate court would have to make.

    This is actually a narrow ruling, whereas the point of this post was on overly broad rulings.

    Besides, it wasn’t just the bare majority that stated that the different counting standards violated equal protection. Seven out of the nine justices agreed. The five-four split was over the proposed remedy.

    It appears that what courts today are taking from Bush v. Gore is that disparate treatment of votes, either by different accessibility to voting machines or by different standards for counting, violates equal protection. I haven’t seen it yet, but I’d suspect that courts could build on the narrow ruling in Bush v. Gore to say that different machines (with different accuracy rates) could violate equal protection.

  8. 8
    F [i'm not here, i'm gone]

    The point is, while it makes sense to argue that an opinion was substantively wrong, it is mostly pointless to get worked up on whether it was “too broad” for that case.

    I think the reason comments are made regarding this is due to the fact that the courts incl. SCOTUS are rather damned arbitrary on providing narrow vs. broad rulings, vs. punting the decision back to lower courts. The arbitrary nature really shines if you follow “intellectual property” law at all.

    Then again, the OP was about Roberts’ possible personal hypocrisy* regarding his public statement, and the public or pundit perceptions of his stance.

    *Not necessarily hypocritical, as one may have real, valid reasons for not following one’s own stated general guidelines in some cases.

  9. 9
    D. C. Sessions

    Totally OT:

    It seems one of Eds favorite people has managed to pick a war of words with John Scalzi [1]. Now, John being a kind and generous sort, has taken various means of applying the Mallet of Loving Correction including the dreaded Kittening. but apparently it’s not quite done the trick.

    Today’s inspiration, though, might be of interest to the regulars here. Join in if you think the effort is worthwhile; if you can’t kick in you might join the monitoring team.

    And who knows? Ed might think it’s worth a word or two.

    [1] Yes, he writes for a living. As in, President of the SFWA.

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