Chief Justice Roberts, activist judge
During the Republican primaries, we saw the effect of Citizens United on our politics: independent unlimited money used to attack candidates. The 2009 Supreme Court decision essentially ended campaign finance limits by ruling that contributions (in the form of money) were protected speech.
I have always been curious about how right-to-life advocates, especially attorney James Bopp became involved; how Chief Justice John Roberts, a vowed conservative, presided over the thorough dismantling of a century of precedent; and why the Obama Administration did such a poor job of defending McCain-Feingold (the legislation under immediate scrutiny), and the many laws restraining campaign contributions.
Now I know. Jeffrey Toobin (New Yorker, May 21) gives a detailed account of how Chief Justice Roberts engineered the arguments and the decision to favor unlimited money. Toobin’s assessment: “The Roberts Court, it appears, will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections.”
That outcome was manifest in a New York Times story today describing an anti-Obama campaign strategy on offer from political consultants that took the low, low road in racist politicking. The sponsor has repudiated the strategy. And so has the Romney campaign.
The alternative, the government dictating rules about its own election, is the anti-thesis of free speech. Neither side seems at a drastic spending disadvantage to the other; let the arguments win the day.
Libertarian trash talk!
The richest among us will be making the rules for choosing candidates and voter qualifications, along with laws and rules that maintain the government perks and subsidies that make them rich.
To say nothing of Roberts misrepresentation of himself at his confirmation hearings.
“To say nothing of Roberts misrepresentation of himself at his confirmation hearings.”
Oh please. Confirmation hearings for nominees of all Presidents are nothing but kabuki dances; Ted Kennedy’s character assassination of Bork ensured that. What they say is nothing but pablum engineered for the news clips that will be played. “Activist” is nothing but a word used now to mean “I don’t agree with the opinion.”
Finally, I find it curious in this telling of this vast right-wing constellation that not a single mention is made of the lawyer who’s opinion and argument was adopted by the Court: notorious conservative firebrand Floyd Abrams. Of course, given Toobin’s problems with factual accuracies, I’m not surprised.
It’s a very readable piece, with this gross slander inserted about eight pages in:
“So, as the Chief Justice chose how broadly to change the law in this area, the real question for him, it seems, was how much he wanted to help the Republican Party. Roberts’s choice was: a lot.”
Istm that the law could equally help, and equally hurt, both Democrats and Republicans, and I fully expect that to be illustrated during the upcoming general election.
Also: the examples Toobin evinces of untoward electoral influence by the wealthy in the wake of the Citizens United ruling – Super PACs in support of Gingrich and Santorum – aren’t terribly persuasive. In retrospect, neither had a prayer of securing the nomination. The rich guy who ran a good campaign won the Republican primary. In 2008, before the Citizens United ruling, the guy who raised the most funds and ran the best campaign won Democratic primary and the White House. I sense a pattern.
I wrote: “Istm that the law could equally help, and equally hurt, both Democrats and Republicans”. I should have written, “Istm that the *decision* …”
Jim Pauwels…. It may be that it will equally help and hurt both political parties; we shall see in the coming months.
I doubt it will help the rest of us…i.e., the citizens, for whom the whole system exists. The rich will choose the candidates for the primaries (Republican and Democrat) by backing them with big bucks; they will choose the winner. They will have their laws passed in the Congress. Etc. etc. Possibly the whole thing will be a wash. Our feeble system is already malfunctioning. Citizens United and its after-life will hardly make it better. Or do you think it will? Explain.
Why don’t we just have Sotheby’s put up the two candidates for bids, with the winning bidder deciding which candidate to have sworn in? It would get all that money spent, spare us the TV ads and probably produce approximately the same result.
The Tea party candidates are getting the most help from PACs .. Bodes good for the Dems. Let the PACs waste their money on easy to beat losers.
Dems get out the youth & senior vote and it’s over.
Margaret – I agree that politics is awash in money, and it is a corrupting influence, but it’s not always easy to figure out whether the money is the cause or the effect of a candidate’s success. Probably I am looking at this from the Chicago point of view: big money is as likely, or more likely, to follow strong candidates as it is to create strong candidates. All the money that Newt Gingrich had at his disposal – or rather, that his Super PAC had at its disposal – couldn’t come close to getting him nominated. The money boys are not so much selecting the nominees as buying access from the eventual winner.
I believe that it is widely expected that President Obama will once again out-fund-raise his Republican opponent. Both parties play the game, according to the rules that have been set. It’s rats finding the way through the maze to the cheese.
Btw – regarding that dumb plot by Chicago options billionaire Joe Ricketts to fund a Jeremiah Wright smear campaign: the Ricketts family owns the Chicago Cubs baseball franchise. For years, the Cubs have been angling to get city and state governments to subsidize the repair and refurbishment of Wrigley Field, the Cubs’ ancient and rather dilapidated stadium. The negotiations had never really achieved lift-off when the Tribune Company owned the Cubs and Richard M Daley was mayor of Chicago. But now that Rahm Emmanuel has succeeded Daley, and the Ricketts family has acquired the Cubs, reports were that the talks had become serious and productive.
Until yesterday. News outlets here are now reporting that Emmanuel is furious that his erstwhile business partners are funding the political opposition, and especially in such a tawdry manner. We’re being told that Ricketts tried to reach out to the mayor yesterday, and Emmanuel isn’t taking his calls. My understanding from the Clinton years is that one of the very last lists anyone would ever want to be on is Emmanuel’s blacklist.
Sometimes, it makes you wonder how these vast fortunes were ever amassed.
JP: Quite a story!!! Owns the Cubs!!!
More in the NYTimes: http://www.nytimes.com/2012/05/18/us/politics/magnate-steps-into-2012-fray-on-wild-pitch.html?_r=1&hpw
Margaret,
Did you even read the Citizen’s United majority opinion (which was written by Justice Kennedy NOT Roberts)? You assert that it “ended campaign finance limits by ruling that contributions (in the form of money) were protected speech,” but the decision had nothing to do with “contributions” to candidates or PACS or anything else. What it decided was that congress could not prevent corporations, unions or other for-profit or non-profit entities (like commonweal) from spending money on political speech (e.g., the anti-Hillary movie at issue in the case). Also, the decisions that were overruled were as recent as 2003 and 1990 (hardly a “dismantling of a century of precedent”) and the court relied on the earlier cases of Buckley v. Valeo (1976) and First National Bank of Boston v. Bellotti (1978) which struck down prohibitions against independent expenditures by corporations in ballot initiatives and referenda. Also, I find it hard to consider this decision a conservative/tea party conspiracy in light of th fact that the American Civil Liberties Union filed an amicus brief that supported the decision.
As I suspected, there have been numerous criticisms of the factual accuracy and conclusions asserted by Toobin. Some are from the usual conservative critics. But the most devastating one, for me, is Tom Goldstein’s takedown. Mr. Goldstein routinely appears before the Court, and is a leading contributor to SCOTUSBlog and is certainly no liberal. Here’s the link to his piece: http://www.scotusblog.com/2012/05/jeff-toobin-on-citizens-united/
If you read the piece, you see how Goldstein points out that after the first argument – which was strictly on narrow statutory grounds – the CJ assigned the opinion to himself. It was only when Justice KENNEDY strongly asserted that the Court review the law on constitutional grounds that he gave in and allowed re-argument, which Justice SOUTER called for. Some relevant quotes:
“From those facts, Toobin reasons that, “[e]ven without writing the opinion, Roberts, more than anyone, shaped what the Court did.” Reargument, he says, was “a strategically ingenious maneuver”; giving Kennedy the opinion after reargument “was another brilliant strategic move.” Because corporations favor Republican candidates, Toobin concludes: “So, as the Chief Justice chose how broadly to change the law in this area, the real question for him, it seems, was how much he wanted to help the Republican Party. Roberts’s choice was: a lot.”
That does not seem to follow. Take the results of the first argument. The Court’s five conservatives agreed that Citizens United should prevail, but divided on whether to resolve the case on narrow statutory or broad constitutional grounds. The Chief Justice both voted for the former and assigned the opinion to himself to try and control the reasoning. That is the opposite of the narrative in which he is attempting to produce the broader result.
But the Chief Justice lost his majority to Kennedy’s broader constitutional opinion. That happens. While Toobin calls the draft Kennedy opinion a “majority,” he does not report that the entire majority switched to Kennedy’s opinion. It appears that Kennedy may have had only a plurality. The conservatives have repeatedly divided on how quickly to move the law to the right, and the Chief Justice has been one to favor moving more slowly – recall Justice Scalia’s biting criticism of “faux judicial modesty.””
Sorry; one correction. I meant to say Goldstein is no conservative. He makes clear in his piece he strongly disagrees with Citizens United.
I agree very much with Margaret that we as citizens are the ones injured here (as we move to plutocracy.)
I don’t think the views if Jim and Jeff are hardly centrist and casting Roberts as a moderate vis a vis Scalia doesn’t mean he isn’t partisan and wasn’t disingenuous at his confirmation hearing.
That’s the way things are for SC nominees since all trhe howling over Bork (another extremist) and what we’ve gotten since is part of the continuing political partisan games that roil across Washington.
Finally, I think people like Toobin and a few others are far more knowlegdgeable on the dynamics of the Court than many here.
I think the Roberts led court has been a disaster for the average American and his role in this democracy.
“Finally, I think people like Toobin and a few others are far more knowlegdgeable on the dynamics of the Court than many here.”
When people more knowledgeable than some here point out factual inconsistencies in Toobin’s reporting, I think it deserves to be taken seriously. If that makes me a partisan, c’est la vie. I’ve somehow missed your non-partisan attacks.
By the way, in what way are we to assume that CJ Roberts was “disingenuous” or misleading at his hearing?
As some here have suggested and perhaps we can agree, the confirmation hearings for Supreme Court Justices have become kabuki dances in which the nominees carefully mask their likely direction when on the court. Justice Kagan in her hearing did some of that, except everyone knows she is a liberal and can guess how she is likely to rule.
Roberts presented himself as a conservative and not a likely activist justice. I will read Goldstein’s criticism of Toobin later today, but whether or not Kennedy should be seen as the leading advocate of the Court’s decision, it seems clear that Roberts, as Chief Justice, in his questioning of Theodore Olson in the Spring, and in ordering a rehearing and scheduling it before the Court normally began in the Fall was pivotal in engineering the decision as it was finally rendered.
Here’s another very liberal law professor who think Toobin’s piece is misguided: http://prawfsblawg.blogs.com/prawfsblawg/2012/05/scratching-my-head-over-the-inside-story-of-citizens-united.html#more
Thanks. Will read along with the others. In the meantime, what has anyone said about Toobin’s description of Kennedy’s widely disparate opinions on the liberal/conservative spectrum? Sounds like a loose canon and/or a man who likes to be the pivot on which the other justices turn.
“it seems clear that Roberts, as Chief Justice, in his questioning of Theodore Olson in the Spring, and in ordering a rehearing and scheduling it before the Court normally began in the Fall was pivotal in engineering the decision as it was finally rendered.”
Funny you should raise these two points, as they have been subject to criticisms as well. First, with respect to re-argument, Goldstein says that re-argument was scheduled at the behest of Justice Souter, NOT some unilateral decision by Roberts. Furthermore, according to Goldstein, the CJ alone doesn’t have the power to unilaterally “order” a re-argument. Second, with respect to Olson’s argument, it seems Toobin has taken substantial liberties in relating precisely what Olson’s argument was. He suggets that Olson was adamant that the Court not address the constitutional issues, but restrict itself to the statutory grounds. Yet the transcript of the argument itself disputes that. Ergo this exchange from the transcript of the argument:
” JUSTICE SCALIA: So you’re making a statutory argument now?
MR. OLSON: I’m making a—
JUSTICE SCALIA: You’re saying that this isn’t covered by it.
MR. OLSON: Yes, I am making a statutory argument in the sense that you will construe the statute in the ways that doesn’t violate the Constitution. The Constitution, as—as the Court said in Wisconsin Right to Life [v. FEC], gives ties to the speaker, errs on the side of permitting the speech, not prohibiting the speech. And so all those things may be statutory arguments, Justice Scalia, but they are also constitutional arguments.”
In Toobin’s telling, the answer Olson gives is simply “That’s right”, i.e. I’m only making the statutory argument.
Finally, with respect to whether Roberts is an “activist” on the basis of Toobin’s argument, it seems doubtful that there is evidence for that conclusion. Again, see what Goldstein says: that Roberts wrote an opinion ONLY on the statutory grounds itself, and was overruled by a conservative majority who rallied behind Kennedy’s opinion (that “extremist!”) and wanted to address the constitutional grounds. By the way, that was the view of the ACLU and its lawyer, Floyd Abrams, as well. So it hardly seems accurate to describe it as some far right-wing upset engineered by that dastardly Roberts (unless you want to believe as well that he wrote a “fake” moderate opinion ruling on statutory grounds to get his desire outcome).
Look, I understand that with the Obama Administration’s dismal record in front of the Court, that many want to rail against a corrupt, nefarious right-wing group, but I think it matters that these would be attackers get the facts right, especially when you can just look up the transcript and see the arguments. I would suggest that Roberts is no more an activist conservative than Kagan is some unhinged liberal. At least not on Toobin’s deeply flawed telling.
Another devastating rebuttal of some flat inaccuracies in Toobin’s story (and not tangential ones, either): http://www.weeklystandard.com/print/blogs/jeffrey-toobin-rewrites-supreme-court-history-and-his-own_645093.html?nopager=1
Perhaps beside the point: Curious that the legal profession, or at least those that appear on blogs, are proving better fact checkers than the storied ones at the New Yorker.
And just to get on the record on this point: I am no fan of Floyd Abrams and the ACLU; insisting that they were as much in favor of Citizens United as the Court only reenforces the impression of an ideologically driven decision.
“And just to get on the record on this point: I am no fan of Floyd Abrams and the ACLU; insisting that they were as much in favor of Citizens United as the Court only reenforces the impression of an ideologically driven decision.”
Is Kennedy even capable of an “ideologically driven” decision? I don’t see that. But maybe you’d prefer to know that the AFL-CIO also submitted an amicus brief urging the Court to strike down the provisions on constitutional grounds. Be that as it may, those facts certainly underscore (for me at least) Toobin’s main contention: that Roberts deftly conducted this operation in order to help the Republican Party.
As others have pointed out, Mr. Toobin’s claim that the Chief Justice did anything remarkable, let alone objectionable, in his handling of the Citizens United case has been debunked by non-”conservative” Supreme Court experts. (I’d encourage everyone who is interested to read the Goldstein piece at SCOTUSblog, and the posts at Prawfsblawg.) More generally, it strikes me that the “Citizens United” that exists in the minds of its critics tends not to actually resemble the case very closely. The decision did not, for example, invent a new and controversial “corporations are people” doctrine; it has been true for ages (and correct) that the Constitution constrains the government when it regulates the activities of corporations, or of natural persons acting through the corporate form. The decision did not depart from “a hundred years of precedent,” as one sometimes hears, but instead overruled a 20-year-old case that was itself an outlier. It did not, as is sometimes charged, invalidate restrictions on contributions to candidates. It certainly did not (and was not decided in order to) benefit Republicans or opposed to Democrats, or “big business” as opposed to Main Street; there are corporate entities — tribes, labor unions, advocacy organizations . . . not to mention newspapers, magazines, and networks — engaging in political speech and spending across the political spectrum.
I’ve read the recommended Goldberg and Prawf. Goldberg is positive about the Toobin’s piece except for what might be rightly construed as Toobin attributing motives to Roberts. Of course, that is always tricky.
But to the legal beagles this question: If Roberts preferred to rule narrowly why didn’t he cast his vote with the minority and thus make it the majority? If in his own draft on the first hearing in the Spring, he preferred to rule narrowly on the case of the Hillary video, why didn’t he pursue that line of thinking with the “liberal” justices and keep it narrow. Those who have said that he really preferred the broader decision first drafted by Kennedy are not wrong then to suspect that he is an activist–and that he may very well favor the Republican party.
That asked, the larger issue it seems to me is this: the reputation of the Congress is in serious disrepute because of partisanship (on both sides), the Court ought to be concerned about its own fall into partisanship–lead by Antonin Scalia and seconded by John Roberts.
“Be that as it may, those facts certainly underscore (for me at least) Toobin’s main contention: that Roberts deftly conducted this operation in order to help the Republican Party.”
Jeff, are you saying that those facts debunk Toobin’s main contention? If you’re saying the opposite of that, I’m getting really confused :-)
“Jeff, are you saying that those facts debunk Toobin’s main contention? If you’re saying the opposite of that, I’m getting really confused :-)”
Sorry; that should have been underCUTS, not underscores. That facts debunk Toobin’s telling, although Ms. Steinfels seems to want to cling to the conclusion come what may.
Ms. Steinfels: as I say, you seem to want to accept Toobin’s conclusion (that Roberts is driven by a desire to fashion opinions that favor GOP causes and is an “activist” in his efforts to do that) despite the evidence in the Citizens United case being extremely thin. You seize on GoldSTEIN’s throw-away compliment at the end of a long piece to suggest that he somehow agrees with Toobin. You’ve swiped away evidence that the conservative majority’s opinion isn’t, well, very conservative, but rather reflective of views asserted across the ideological spectrum. With respect to Roberts, I just don’t see the evidence that he is some unhinged conservative activist. I suppose you can fault him for not writing in dissent on narrow statutory grounds, but let me make one counter-suggestion to your narrative. I have no doubt that he agrees with the majority opinion in this case, but perhaps he thought he could forge a consensus on the statutory grounds issue. When he lost that cause (notice, by the way, that apparently none of the liberals agreed with his moderate position – why are they free from the “partisanship” charge?), he signed on to the majority.
Leave aside Citizens United: there is ample evidence that contrary to being thwarted by a dastardly CJ making Machiavelli proud by having moderate conservatives write stridently activist opinions, that the Obama administration’s troubles in the Court are of its OWN making. I suggest you start by reading the argument in Hosanna-Tabor. A UNANIMOUS rejection of the Obama administration’s argument. Is that one partisan too?
As I said before, I understand the political desire for liberals to be able to cast the Court as the villain thwarting Pres. Obama’s grand visions for all that is good and noble and decent. But I would suggest that if you’re going to accept that narrative, the facts have to be a little bit more tightly wound than what is presented. Otherwise, I’m not sure it’s Roberts that is acting like the loose-cannon partisan.
By the way, I’ll assume the only reason you didn’t read the conservative critiques is because of a lack of time. But I do recommend the Weekly Standard piece, as it delves into the very argument itself, whereas Goldstein’s piece is a more general overview.
I’ve just re-read Goldstein’s piece. I found his last 2 paragraphs interesting in light of the criticism that if ROberts’ wanted the moderate position, he should have dissented:
“The majority’s view is that the statute imposed a significant restriction on a basic First Amendment right: participating in elections. More broadly, the majority believes that the Court’s prior precedents in this important area are fundamentally flawed. It is not surprising that they want to correct those perceived errors — on what everyone agrees is a critical question — as quickly as possible.
Imagine if the shoes are reversed in 2018. Justice Kennedy retires and is replaced by Kamala Harris. The Court hears a case that it could decide on narrow grounds, or it could go further and overrule Citizens United. Will progressives really contend that the new and more liberal majority should leave that decision standing? I don’t think so. They will want the Court to get the decision “right.” And if the senior Justice in the majority votes that way and assigns the opinion accordingly, I don’t think it will be because she is trying to help the Democratic Party as much as possible.”
Justice Landry: I had already done my homework when the Weekly Standard cite appeared; naturally my first impulse is to pass it up, but I will read it late this afternoon.
P.S. You noted, I hope, that Goldstein urged his readers to buy Toobin’s book.
A side note -today’s NYT Sunday Review highlights the Roberts’ court undercutting the Brown vs. Board desegregation decision and its negative impact on education.
I’m sure some will criticize the liberal professor who wrote it.
But the Roberts/Scalia/Alito/Thomas court tis big with GOP who placed it there and IMo continues to do injustice to the American electorate in general and the less than advantaged in particular.
But I guess that today ideology matters more than values.
“But I guess that today ideology matters more than values.”
Or facts, apparently.
????
See Margaret’s latest post.
Bob, I’m just curious. You’re quick to see/judge/dismiss those with whom you disagree as motivated purely by “ideology” versus “values” or “injustice” or “partisanship”, yet the only people you seem to see such evils in are conservatives. Ever stop to think that the world doesn’t break down so neatly? That perhaps the ideology you see so rampant in others isn’t the problem?
Just one little FACT: you bemoan above the “Roberts/Scalia/Alito/Thomas court” and the “injustice” it is wreaking across the land. Yet it was Justice KENNEDY who wrote Citizens United.
But the Roberts Court accepted and the majority were connsevatibes.
I think the push to the consevative right (and I don’t see all consevatives as bad -I appreciated tha day of wiliam Buckley when real discourse was possible) has been a pish to the extreme that brands the POTUS for example as the most this or that or socialist, that is onstructionist at every turn and like the new GOP candidate for Senate in Indiana think that compromise or working together for the common good is verboten.
And, as noted, he was supported by aload of big consevative dinero.
But of vcourse if you’re consevative today , it’s only yout high standards, not ideoogy that matters. Right?
“But the Roberts Court accepted and the majority were connsevatibes.”
I’m not precisely sure what you mean by the “Roberts Court” but apparently you didn’t read any of the links above. If you had, you’d know that it was Justice KENNEDY (who apparently you don’t consider one of the evil 4 since you left him out above) who pushed Roberts and the others to the more “conservative” position. Roberts was apparently prepared (and had the other 3 on his side) to go with a more moderate opinion, but Kennedy objected and circulated a draft that addressed the Constitutional issues. This is a factual matter, not one of ideology or values.
With respect to the parade of conservative horribles you mention (socialist, obstructionist, compromise, etc.), I haven’t ever called Pres. Obama a socialist, I have repeatedly criticized my own party on other topics for NOT seeking a common-sense conservative fiscal reforms when they could have, and yet you have repeatedly asserted – by name – that I am noting but an ideologue who has no concern for “values.” I don’t think it is a fair assertion, nor a very helpful way of viewing the world.