The Roberts Court: The Struggle for the Constitution

by Marcia Coyle

  Ted Olson, the Supreme Court veteran, had his routine for preparing an argument. Kagan now had to find her own. She turned for advice to her principal deputy, Neal Katyal, who, like Olson, prepares binders with every case cited in the briefs by the government and the other side. He reads the cases and takes notes. Kagan asked him to prepare the binders. They later began discussions about the issues and the shape of the argument. Kagan also followed the office’s two-moot-court rule. Her attorneys and attorneys from the Federal Election Commission held the two mock arguments in which she practiced her arguments. Afterwards, she brainstormed the issues with only the lawyers who had worked on the initial case.

  The Court’s reargument order had ratcheted up the stakes in what had been essentially a narrow campaign finance challenge, and the implications of that order resounded in the media and the blogosphere. Forty-two amicus briefs attempting to persuade the justices to adopt their viewpoints were submitted to the Court by business, labor, good government groups, conservative, libertarian and liberal advocacy organizations, media outlets, members of Congress and states.

  One amicus brief came from the Michigan Chamber of Commerce, which told the justices that the Court was wrong in 1990 in Austin v. Michigan Chamber of Commerce when it upheld the state ban on corporate independent expenditures, and the time had come to right that wrong. The chamber’s brief was written by the same lawyer who had argued and lost the case nineteen years earlier.

  Like the District of Columbia gun challenge, the Michigan Chamber’s challenge back in 1990 stemmed from an entirely manufactured case in which the chamber’s vice president and its legal counsel chose to stretch the boundaries of campaign finance law. They decided to use the chamber’s general treasury funds to support a candidate in a 1985 special election. Although state law prohibited the use of those funds, they picked a candidate, drafted an ad supporting him to run in the Grand Rapids Press, and then went into federal court to get an injunction against the law so they would not be charged with a felony for violating it.4

  The chamber was optimistic about its chances nearly twenty years ago because the Supreme Court, shortly after the landmark campaign finance decision in Buckley v. Valeo in 1976, had ruled in favor of corporate political speech in two cases. In the 1978 First National Bank of Boston v. Bellotti, a 5–4 majority of the Burger Court struck down a Massachusetts law that banned corporations from spending money to influence a public referendum that did not concern the corporation’s business. The majority said the value of speech in terms of its ability to inform the public does not depend on its source. And in a 1986 decision, FEC v. Massachusetts Citizens for Life, the justices held that the Federal Election Campaign Act’s ban on corporate expenditures was unconstitutional as it applied to a narrowly defined type of non-profit corporation.

  Dissenting in both cases was, surprisingly, conservative Justice William H. Rehnquist, who wrote in the 1986 case, “Congress expressed its judgment in [the federal law] that the threat posed by corporate political activity warrants a prophylactic measure applicable to all groups that organize in the corporate form. Our previous cases have expressed a reluctance to fine-tune such judgments; I would adhere to that counsel here.”

  Despite those two rulings, when the chamber’s Austin case reached the Supreme Court, a 6–3 majority found support in its campaign finance decisions for upholding Michigan’s corporate spending ban. Justice Thurgood Marshall, writing for the majority, said Michigan’s regulation was aimed at a different type of corruption from the typical quid pro quo. It was aimed at “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”

  He emphasized that “the mere fact that corporations may accumulate large amounts of wealth is not the justification for [the state law]; rather, the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures. Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions.”

  Kennedy wrote a dissenting opinion that was joined by Scalia and O’Connor, and Scalia also wrote a caustic dissent, insisting, as he still does today, that speech is speech and the more speech the better. O’Connor later would shift her position toward greater regulation of campaign finances and vote in 2003 to reaffirm Marshall’s decision in Austin. Kennedy, however, has remained steadfast in his position that the First Amendment and the Court’s decisions draw a line between campaign contributions and expenditures, and independent expenditures are entitled to more protection than campaign contributions.

  In late July, as the government and Olson and his team continued their argument preparations, Olson received a phone call from Senate GOP leader Mitch McConnell of Kentucky. McConnell, who had filed an amicus brief supporting Citizens United, told Olson that he wanted his lawyer—the renowned First Amendment expert Floyd Abrams—to share Olson’s thirty minutes before the justices. Abrams had represented McConnell in the 2003 McConnell v. FEC case. Olson told him that the decision had to come from David Bossie, head of Citizens United. Olson then called Bossie and said he needed every second of his thirty minutes and to not give any of it to McConnell. Within minutes, McConnell called Bossie and repeated his request. Bossie told him that he had to consult with Olson, but he was not inclined to give away any argument time. Bossie then called Olson and instructed him to call Abrams with Bossie’s decision against divided argument time.

  A few days later, Abrams called Bossie and asked if he would object to McConnell filing a motion with the Court seeking argument time. Bossie said he could not stop him and Abrams filed the motion. Olson urged the Court to reject the motion, saying, “While Senator McConnell doubtless has familiarity with the case bearing his name, he does not have any specific familiarity with the record of this case.” The government, on the other hand, had consented to participation in the argument on its side by a lawyer for Senators John McCain and Russell Feingold.

  The Court ultimately resolved the squabble by granting ten extra minutes to Abrams and ten extra minutes on the government’s side to the lawyer for McCain and Feingold, former Clinton solicitor general Seth Waxman. The reargument was scheduled for eighty minutes—twenty more than the usual one hour.

  Inside the Court, the changeover of clerks for the approaching new term had taken place, but the new clerks soon were consumed with old business: Citizens United. And the Court also was preparing for a new justice. On August 6, the Senate, after nearly twenty hours of debate, voted 68–31 to confirm Sonia Sotomayor. Only nine Republicans voted for her. Two days later, she took the judicial oath, which was administered by Chief Justice Roberts. On September 8, the Court held a ceremonial investiture ceremony in the courtroom where, as her mother, friends, pop star Ricky Martin, Vice President Joseph Biden, and others looked on, Sotomayor repeated the oath and took her seat at the far end of the justices’ bench. Shortly afterwards, escorted by Roberts, she took the traditional walk down the front steps of the building to the plaza, where a battery of press and their photographers stood behind a roped-off area for the usual photo op. With a final “Bye, guys,” she disappeared inside the marble halls of justice.

  • • •

  The next morning, September 9, the justices gathered again in the courtroom for the start of reargument in Citizens United and whether the justices should overrule the 1990 Austin decision’s ban on corporate independent expenditures and the McCain-Feingold law’s prohibition on using corporate general treasury funds for electioneering communications.

  Bossie and his wife had waited for seats in the public line outside the Court, but once inside, they were seated in the front of the public section. The courtroom was packed with visitors, including some members of Congress and many leaders of campaign finance reform grou
ps and opposing groups. Directly across from Bossie, about ten to fifteen feet away, sat the two authors of the McCain-Feingold law.

  The solicitor general has her own office in the Court as well as in the Justice Department. The court office was under renovation that morning, as was the lawyers’ lounge. All of the lawyers in the case ended up sharing space in the clerk’s office on the ground level of the building. Although it was Kagan’s first argument, she showed no trace of nerves or anxiety. Instead, she spent the waiting time cracking silly jokes for the captive audience.

  The government knew that the reargument order was bad news and believed it had been triggered by the book-banning admission. As its lawyers headed into the reargument, they had two challenges: responding to the book-banning concern and defending Austin. They felt that if they could take the book concern off the table, they might be able to steer the Court toward upholding the McCain-Feingold electioneering provision. Austin was more troublesome. The conservatives on the Court clearly were hostile to the Austin decision. It was a Thurgood Marshall opinion. And even though Austin was reaffirmed in 2003 by the Court in McConnell v. FEC, the Court’s membership had changed since then. Should Kagan rely on Austin or try a different rationale for upholding the ban on corporate spending?

  “What we were trying to do was count to five [justices] and realizing we probably weren’t going to get to five, but to the extent there was any chance at all, we wanted to take that chance,” said a former lawyer in the office at the time. “But we were not under any illusions.”

  Olson, first at the podium, opened his argument with a direct attack on Austin, which, he said, stood for a “radical concept” that would authorize the government to ban books and signs. Ginsburg soon triggered a series of questions about whether Olson believed there was any difference in the First Amendment rights of individuals and corporations for purposes of campaign finance. “A corporation, after all, is not endowed by its creator with inalienable rights,” said Ginsburg. Olson replied that the Court has said “over and over again” that corporations are persons entitled to First Amendment protection. But what about megacorporations, she asked, and megacorporations with foreign investors? Olson said the First Amendment applies and Congress would have to identify some compelling government interest to justify any spending restrictions.

  Sotomayor told Olson that although he was making “impassioned” arguments about why current campaign finance regulations and decisions were bad, “there is no record that I am reviewing that actually goes into the very question that you’re arguing exists, which is a patchwork of regulatory and jurisprudential guidelines that are so unclear.” But he rejoined that it was the government’s burden to produce a record justifying its speech restrictions and it had not done so.

  Olson had coordinated earlier with Floyd Abrams on how to spend his time most effectively. When Abrams next took his turn, he urged the justices not to rule narrowly as the case was first presented but to decide the constitutional questions now instead of waiting for the next case like Citizens United and the next case and the next case, all of which would have some special wrinkle setting them apart from the last one. Ginsburg and Stevens sparred with him on respect for the Austin and McConnell decisions and noted that their rationales for limiting corporate expenditures went back a half century or longer and should not be so easily discarded.

  Sotomayor told Abrams that state and federal lawmakers had worked hard for the last one hundred years to find the right balance between the First Amendment and protection of the election system. A broad ruling, she said, might cut off that future democratic process. And then, in a comment that surprised the audience, she suggested she might be rethinking the basic underlying premise of protection for corporations. She told Abrams, “What you are suggesting is that the courts, who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court’s error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics.”

  Olson, seated at the counsel’s table, was startled by Sotomayor’s comment: “I thought surely they’re not going to say corporations are not protected under the First Amendment or the Constitution generally. I thought that was pretty interesting that she would say that.” He was pleased with Abrams’s argument and responses. “Floyd Abrams is a First Amendment icon and yet he is a liberal,” said Olson. “For him to be there and to say, ‘Wait a minute; this is about fundamental free speech,’ I can say that but I’m not a First Amendment icon. He added a lot of credibility to our side.”

  Kagan, in a confident yet conversational style, began her argument by saying that the Court for one hundred years had left in place limits on contributions and then limits on expenditures, which were specifically approved in Austin. Roberts soon cut to the heart of the government’s defense of Austin and asked Kagan if she was relying on Austin’s justification for the ban on corporate spending: “the corrosive and distorting effects of immense aggregations of wealth.”

  Kagan said the government’s position was similar and that it was relying on the distortion of the electoral process that occurs when corporations use the money of shareholders who may not agree with the political policies that the corporation is pursuing with their money. She also cited the concern with quid pro quo corruption. Roberts pointedly told her that the government was grounding Austin on interests that the Court had never recognized as justifying restrictions on independent expenditures.

  Justice Alito jumped into the crossfire to note that more than half the states permit corporate expenditures in elections and, he asked, “Have they all been overwhelmed by corruption?” Kagan fought back, saying the experience of half the states cannot be more important than the hundred-year-old judgment of Congress that these expenditures would corrupt federal elections.

  Justice Scalia’s hostility toward Congress suddenly surfaced as he interjected that Congress has a self-interest and he doubted that a body of incumbents could draw restrictions that did not favor incumbents. Kagan, bluntly but politely, told Scalia that he was wrong. “In fact, corporate and union money go overwhelmingly to incumbents,” she rejoined. “This may be the single most self-denying thing that Congress has ever done.”

  The book-banning question did not come until the very end of Kagan’s argument, when Ginsburg asked for the government’s position. Kagan responded, “The government’s answer has changed,” and laughter erupted in the courtroom. Although part of the law extended to full-length books, she said, there would be a good-as-applied challenge to any attempt to apply the corporate treasury ban to books. She added that the FEC had never applied it to books and a book had never been an issue for sixty years. Roberts leaned forward with sudden intensity, saying, “We don’t put our First Amendment rights in the hands of FEC bureaucrats.”

  Seth Waxman stood up after Kagan and stressed one point: if the Court wanted to reexamine the basis for the rulings in Austin and McConnell, it should do it in a case where the issue had been squarely presented and litigated in the lower court so the justices had a complete record on which to make a decision, just as it had in McConnell in 2003 and in other cases. The Court did not have such a record in Citizens United.

  Olson took five minutes for rebuttal, and then the argument, which had grown from eighty minutes to ninety-four minutes, ended.

  After Roberts announced that the case was over, the justices left the bench and the Supreme Court police began to release the audience row by row. As Bossie moved to leave his aisle seat, he met, directly across the aisle from him, McCain and Feingold. They did not know Bossie, but he recognized the two senators and he overheard McCain say to Feingold, “Russ, I don’t know how we win this thing.” Feingold answered, “This is an uphill battle.”

  Neither they nor anyone else in the courtroom that morning, except for the nine justices, knew that the battle had been lost months earlier.

  The Citizens United rear
gument on that September morning closed out the Roberts Court’s fourth term. Although a final decision would not come until the new term, whose start was just weeks away, the case would be officially a part of the October 2008–09 term.

  The term that was ending looked something akin to the childhood game of “Simon Says.” There had been a giant step to the right with Citizens United, which almost everyone expected after the reargument would lift restrictions on corporate and union spending in elections. There had been two small steps back from the brink of major rulings in two race cases. And there had been small but significant steps to the right in three other areas: criminal justice, age discrimination, and the environment.

  In that latter category of smaller steps to the right, Roberts led a 5–4 majority of his conservative colleagues in a decision that relaxed the so-called exclusionary rule that requires courts to exclude evidence obtained from an illegal search or arrest. In Herring v. United States, police made an arrest based on erroneous information supplied by a police clerk. Roberts and the majority, which had been gradually narrowing the application of the exclusionary rule, said, for the first time, that the rule did not apply “when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements.” The decision was potentially a broader application of the “good faith” exception to the exclusionary rule.

  And in Montejo v. Louisiana, Alito led the conservative majority which, in overruling a twenty-three-year-old decision, pared back a criminal suspect’s right to a lawyer before police interrogation. But there was a notable liberal victory in Graham v. Florida, when a 6–3 majority ruled that the Constitution forbade a sentence of life in prison without parole for juveniles who committed crimes other than murder. Roberts agreed with the outcome but wrote separately to say that he disagreed with a categorical ban on the sentence and, instead, said that judges should take a case-by-case look at whether the sentence should be applied. Scalia, Thomas, and Alito dissented.