Toobin Explores Secret Court Maneuvering on Citizens United

In the New Yorker, legal analyst Jeffrey Toobin peers behind closed chamber doors  to give a detailed and compelling account of the maneuvering behind the Supreme Court’s Citizens United ruling. His conclusion: Chief Justice John Roberts Jr. (photo) personally “orchestrated” the campaign finance decision handed down in 2010.

From a case of “modest importance” when it arrived at the court, Citizens United was transformed into a more expansive, landmark ruling through both the missteps of a deputy solicitor general at the court’s first oral argument of the case and maneuvering by individual justices, especially Justice Roberts, Toobin writes.

The high court ultimately expanded the scope of the case, initially narrow and involving an anti-Hillary Clinton documentary, to ask whether to overturn a ban on direct spending from corporate and union treasuries to support or oppose federal candidates.

After the initial arguments in March 2009, the court voted in conference that existing McCain-Feingold campaign finance law didn’t ban airing of the documentary close to the elections by the nonprofit Citizens United group. Toobin reports:

“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.

“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.”

After reargument over far broader questions of law in September 2009, Justice Roberts then assigned the majority opinion to Justice Kennedy and “obtained a far-reaching result without leaving his own fingerprints.”

Citizens United has proven one of the most controversial Supreme Court rulings in recent memory, and has figured in a transformation of outside spending on this year’s presidential elections. The decision lifted key restraints to allow unlimited political spending by corporations and labor unions. It stopped short of permitting direct contributions to candidates’ campaigns.

Toobin is highly critical of Citizens United. A promotion for Toobin’s upcoming book, “The Oath: The Obama White House v. the Supreme Court,” casts an “ideological war” that sets the stage for the November presidential election, when “the future of the Supreme Court will also be on the ballot.”

Justice at Stake filed an amicus brief in Citizens United. When a decision was issued, JAS warned that it threatened a cash deluge from corporate treasuries in judicial elections — and a grave threat to America’s courts.

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