The Roberts Court: The Struggle for the Constitution

by Marcia Coyle

  After reading his summary, Roberts calmly announced that Citizens United was being held for reargument.

  He then read a letter to David Souter from his colleagues in which they expressed “a profound sense of loss” over his retirement, but understood his desire, in the words of the poet Robert Frost, to “ ‘trade white marble for White Mountains, and return to your land ‘of easy wind and downy flake.’ ” Souter then said he too had a letter to read and told his colleagues, “We have agreed or contended with each other over those things that matter to decent people in a civil society. For nineteen terms, I have lived that life with you, all of us sharing our own best years with one another, working side by side as fellow servants and friends.”

  Shortly afterwards, Roberts gaveled the session to a close.

  In the audience, Bossie turned to Boos and asked, “What the hell just happened?” Boos replied that they were getting a rehearing. “Which instantly means dollar signs to me,” said Bossie. “That’s the harsh reality to me. The first thing was how much is this going to cost? We don’t have unlimited resources. We had to do this for the right reason and we were, but it’s a complicated thing.”

  Olson told the two men that he would meet them outside after he saw the clerk of the Court. He emerged from the building with the reargument order in hand. The order directed Citizens United and the government to answer whether the justices should overrule either or both of two major campaign finance decisions: the 1990 Austin v. Michigan Chamber of Commerce, which upheld a state ban on corporate independent expenditures, and that part of the 2003 decision in McConnell v. FEC upholding the prohibition on the use of corporate or union general treasury funds for electioneering communications. Reargument was set for September 9, just nine weeks away, and almost six years to the day from when the McConnell case itself was argued.

  Olson explained the order as the three men stood on the steps of the Court, and he asked them if they wanted to go forward again. “I said, ‘Absolutely. Let’s go,’ ” said Bossie. As they left the Court, one question still lingered in their minds, the minds of the government’s lawyers, and of those closely following the case: What had happened to trigger the reargument?

  The conventional wisdom that day and to this day was that reargument was ordered because the justices realized the breadth of the government’s argument and its consequences for political speech when Alito and Roberts questioned Deputy Solicitor General Malcolm Stewart about book banning. The sequence began with Alito asking whether there was a constitutional difference between distribution of Citizens United’s video-on-demand movie and providing the same thing in a book. Stewart answered that the electioneering restrictions could have been applied to other media.

  His answer led inevitably to Alito’s memorable question of whether the government could ban a corporate- or union-sponsored book, and Roberts’s follow-up to that, if the book had just one sentence at the end urging a vote for a candidate? Although Stewart was precise in his answer that the law and the government did not ban books or any political speech, only the use of corporate or union general treasury funds for such a book, some justices refused to see the distinction. For those justices, the bottom line was that the book, in effect, might not get published if there were no PAC or other source of funds to publish it.

  “Malcolm is such a straight shooter and a great advocate,” said a former colleague. “He is not a weaver and a dodger. He sees this as the logical implication of the government’s position.” Indeed, the Federal Election Commission and the lower district court had found that Hillary: The Movie was an electioneering communication and so a book with the same purpose or similar language advocating a vote would fall within the funding restrictions as well. Stewart’s answer was based on the law as it stood at the time. To have answered otherwise would have forced him to explain, in answer to the justices’ next inevitable question, why the Constitution places a higher value on speech in a book than in a movie.

  Despite the conventional wisdom that Stewart’s concession triggered the reargument order, a number of justices in later interviews said that the conventional wisdom was wrong.

  “There was an intense debate within the Court that I don’t think was heavily influenced by what the solicitor general said,” recalled one justice. Another justice agreed, saying, “The reargument issue had nothing to do with that, at least not for me. It’s a tough thing to hang on Malcolm Stewart.” And a third opined that the ultimate decision in the case was never in doubt after the first conference vote.

  The key reasons for the reargument order were Kennedy and Souter, longtime opponents on the battleground of campaign finance regulation and the First Amendment. Kennedy had written a draft majority opinion that went beyond what Citizens United had sought from the Court. The opinion achieved what Kennedy and Scalia had long sought: the overruling of the Court’s 1990 decision upholding a state ban on corporate independent expenditures, and the undoing of McCain-Feingold’s restrictions on electioneering communications funded by corporate or union treasury funds.

  Not surprisingly, the Court’s liberal wing disagreed with Kennedy. Stevens assigned the dissent to Souter who, in strong words, tore into Kennedy’s legal analysis. But his strongest words he saved for the procedural flaws in the way the majority was deciding the case: it was moving aggressively to decide issues that not only had been abandoned by Citizens United in the lower district court but had not been fully briefed and argued before the justices themselves.

  Respect for prior decisions and caution in overruling them had been a particular concern of Souter’s throughout his nearly two decades on the Court. In the 1992 abortion case, Planned Parenthood v. Casey, the plurality opinion, which reaffirmed the landmark Roe v. Wade, was written by three justices: O’Connor, Kennedy, and Souter. On the day the decision was issued, each read out a portion of the opinion from the bench. Souter’s summary emphasized the importance of respect for precedents.

  After his retirement, one of his former clerks said, “None of us really knows to this day what he thinks of Roe v. Wade and how he would have voted if it came before him on a clean slate. But the respect for prior decisions and continuity on the Court were extremely important to him. I think he deeply believed the law and important constitutional principles were not things that should vary back and forth depending on new appointments to the Court.”

  Roberts was ready to put out the Kennedy opinion which had responded to Souter’s dissent. Souter went to Roberts to emphasize his point that this was not the way—the right procedure—for the Court to handle the case. Although the justices may write harsh comments about each other’s analysis in their decisions, the comments are rarely taken personally or have lasting effect. However, there is what one former clerk from the term called a “protect the institution” button that is pushed when a justice believes the Court is ignoring practices or procedures that protect the institution’s credibility and standing. When pushed, it can make all of the justices feel uncomfortable, and perhaps no one gives it more weight than Roberts. Souter pushed the button very hard.

  With the end of the term fast approaching, the justices met in conference to discuss the Citizens United opinion. There was “intense debate” about what to do. When that debate ended, the justices had reached a consensus that, as Souter and also Stevens had suggested, Citizens United should be reargued and the lawyers directed to address whether Austin and part of the 2003 McConnell v. FEC decision should be overruled. The opinions by Kennedy and Souter were put aside because the case was starting anew and there would be new opinions based on the new arguments. Souter, of course, was leaving the Court and would not be participating in the reargument.

  Roberts and the other justices knew the outcome would be no different, but by ordering reargument, the procedural accusation would be put to rest.

  “This was really to give the lawyers a shot at answering the question that the Court had raised,” said one justice who had joined Souter’s draft dissent. Anot
her who was in the draft majority agreed, saying, “Once you decide the issue is implicated, we could have just sailed ahead, but instead we made the decision, no, we’re going to take this slowly and make sure we’ve all given serious thought to what it is.”

  CHAPTER 12

  “The most misguided, naive, uninformed, egregious decision of the United States Supreme Court, I think, in the twenty-first century.”

  —Senator John McCain on Citizens United v. FEC, 2012

  Race, guns, and money dominated Supreme Court news over the summer, not in cases being argued and decided, but under the glare of television cameras in a large, crowded hearing room where one of the fundamental exercises under the Constitution was about to unfold.

  On July 13, 2009, about a block away from the Court, the Senate Judiciary Committee opened hearings on the nomination of Judge Sonia Sotomayor to succeed Justice David Souter on the Supreme Court. She was no “stealth” nominee in the sense that Souter was when he was nominated. She had the proverbial paper trail, having spent eleven years as an appellate judge on the U.S. Court of Appeals for the Second Circuit, and before that, six years as a trial judge.

  Although confirmation hearings in the last two decades had taken on the air of gladiatorial encounters, with special interest groups battling each other more than a contest between the actual nominee and the senators, there was very little for Republicans to use against Sotomayor. Her thousands of opinions as a judge reflected a careful attention to the facts and often narrow, workmanlike applications of law to those facts. And Republicans had good reason to proceed cautiously: her nomination was historic—the first Hispanic American nominated to the high court. Her background exemplified the American dream as she rose from a Bronx housing project to an Ivy League education to one of the country’s most important courts, and a popular president in his first term made her his first Supreme Court nominee.

  In the month before the hearings began, White House and Justice Department lawyers put Sotomayor through a series of mock hearings in which they played the role of Judiciary Committee members and asked questions based on her record and speeches and statements made earlier about her by senators. The White House also took a page from the prior Republican administration by arranging conference calls with reporters, special interest groups, and political leaders in an effort to shape the message about the nominee.

  When the hearings opened in the Senate Hart Office Building, the nation saw a nominee who appeared much as she is today in her approach to legal questions. As she does on the bench, Sotomayor spoke in a careful, deliberate manner, using her hands to emphasize and elaborate. During breaks in the hearing sessions, she seemed to relax as she left her seat and passed senators on her way out of the room. She would stop to chat with both Republicans and Democrats, leaning in close to hear them, touching a shoulder or arm, and giving a quick smile or laugh.

  “It was no secret coming into those hearings what the attack was going to be on her,” recalled a committee staffer who worked on the nomination. “That also helps frame what the positive case is going to be. It helps to refute or preempt what the negative case is going to be.”

  The “big” issues for the Republicans were guns, race, and Sotomayor’s by-then-famous comment about “a wise Latina” in a speech that she gave in 2001. The gun issue arose because of a decision in which she, and two other judges, held that New York’s ban on a martial arts weapon—nunchaku—did not violate a man’s Second Amendment rights.1 Although the Supreme Court in 2008 had ruled that the amendment protected an individual right to possess a weapon in the home for self-defense, the three-judge panel said correctly that the Supreme Court decision only applied to the federal government and it was up to the Supreme Court whether to apply it to the states. Gun rights activists accused Sotomayor of being hostile to gun rights. The National Rifle Association, which publicly rates the votes of members of Congress on bills favorable or unfavorable to the organization, later said it would score a vote supporting her confirmation against the senator casting the vote—the first time it had ever scored a Supreme Court confirmation vote.2

  During the hearings, Sotomayor continued to defend her panel’s decision. However, to repeated questions probing her views on guns, she said she considered the Supreme Court’s 2008 decision in District of Columbia v. Heller to be settled law and would go no further, explaining that other gun-related issues could come before her if she were confirmed. In fact, those other issues, such as challenges to state laws on concealed weapons and bans on campus weapons, were being pressed in lawsuits around the country, which was why senators on both sides of the aisle, gun control advocates, and the NRA cared so much.

  The race issue also stemmed from an appellate panel ruling in which Sotomayor participated. The case was the New Haven white firefighters’ challenge before it got to the Supreme Court. The panel, in a one-paragraph decision, affirmed the trial court’s ruling against the white firefighters, and she later voted against having the full appellate court review the panel’s decision. By the time she faced the senators, the Supreme Court had reversed her panel’s decision in Ricci v. DeStefano.

  Republican committee members criticized her panel’s decision for spending only one paragraph on a case raising difficult and sensitive questions about job discrimination; but Sotomayor countered that the panel based its decision on a “very thoughtful, very thorough” 78-page opinion by the trial court. In reaching its own decision, the panel, she said, applied the law as it stood in her circuit, which allowed the city to discard the test results. The Supreme Court, she acknowledged, had now changed the law.

  Sotomayor kept her composure even as committee Republicans brought into the hearings Frank Ricci and eleven other New Haven firefighters in blue dress uniforms who took seats behind her witness table. But the GOP senators made little headway against her confirmation with that tactic. When Ricci later testified about how hard he worked to pass the promotion exam, he was asked by Democratic senator Arlen Specter of Pennsylvania: “Do you think Judge Sotomayor acted in anything other than good faith in trying to reach a fair decision in the case?” Ricci replied: “That’s beyond my legal expertise. I simply welcome an invitation by the United States Senate to come here today.”

  Even before she went before the committee, much ink and airtime had been spent on the “wise Latina” comment. It became the basis of opponents’ claims that she would be an activist, even racist, justice. In her 2001 speech about how a judge’s ethnicity and gender may affect her judging, Sotomayor had questioned a statement by former Justice Sandra Day O’Connor that a wise old man and a wise old woman would reach the same decision in deciding cases. She said in her speech: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

  To senators’ questions, she explained that the words were a “rhetorical flourish” that did not work. What she meant by them was that “Life experiences have to influence you,” she said. “We’re not robots who listen to evidence and don’t have feelings. We have to recognize those feelings, and put them aside.”3

  She repeated, almost like a mantra, that her judicial philosophy was “to apply the law to the facts,” a mantra that frustrated senators on both sides as well as outside groups and observers for how little it revealed of her approach to fundamental constitutional questions. In the end, however, there was little doubt that Sonia Sotomayor would take her place on the highest court in the land, and she would get there in time to sit during the reargument of Citizens United.

  As Sotomayor endured the Senate ritual, lawyers for Citizens United and the federal government shifted to warp speed in the face of a brutal, Court-ordered schedule for filing briefs on the Court’s reargument questions. Olson’s legal team had to cancel an Alaskan fishing trip in August because of the upcoming argument.

  “When you know for sure the whole ball game is up for grabs, you take it very se
riously,” said Ted Olson. “I suspect I spent every bit of time that I spent on the first argument, if not more, getting ready. Even if you think you’ve got the odds going in your direction because of the way the Court’s order read, it always could come out the other way and lots of things could happen.”

  When a law passed by Congress is struck down or its constitutionality is at stake, the solicitor general of the United States personally takes on the defense. Solicitor General Elena Kagan, on the job just shy of four months, also prepared for the September 9 arguments. The Citizens United showdown would be the former Harvard Law dean’s first appellate argument in any court.

  Perhaps because she was aware of her own lack of experience compared to the career deputies and line attorneys in her office, or perhaps because she has unshakable self-confidence, Kagan immediately became a hands-on solicitor general (or “SG,” as it is commonly known), who worked as hard if not harder than anyone in her office, according to lawyers there.

  “She took one day off the entire time she was SG,” said one former attorney in the office. “She was in every weekend, every Saturday, every Sunday. She is an extremely demanding person and thinks everyone should work as hard as she works, and nobody frankly can. There isn’t another human being who can. She just lived it and breathed it.”

  On her first day in office, the government had a reply brief due in a case. Kagan took the brief, which had been written by one of the office’s best writers, and turned it around the same day with more words of hers in it than of the original attorney, recalled the former attorney. “Those first few months were tough on some people,” he said. “It wasn’t that she was just rewriting briefs. She was just better. It’s shocking for people who believe law is about experience. She is really just such a good writer and strategist.”