The Roberts Court: The Struggle for the Constitution

by Marcia Coyle

  Thomas led the 5–4 conservative majority in Gross v. FBL Financial Services where, even though no party in the case had raised the issue or sought Thomas’s outcome, the majority aggressively moved to impose a higher burden of proof on people bringing job-related age discrimination claims than is required for proving race and gender discrimination under Title VII.

  And it was considered the worst term ever for environmental advocates, who lost all five of their cases in the term even though they had prevailed in the lower courts.

  After four years of the Roberts Court, Justice Kennedy—as he had since O’Connor’s departure—continued to hold the key to outcomes in cases that divided the justices along ideological lines; but he was much more closely aligned with the conservative wing than she had been in her later years on the Court.

  The Roberts Court also had shown a willingness to reach out for issues that were not in dispute in the cases brought to them and to move the law in a more conservative direction in decisions such as Gross v. FBL Financial Services (greater burden of proof on people bringing job-related age discrimination cases), Ashcroft v. Iqbal (a higher bar on people seeking to bring cases in federal courts), and Montejo v. Louisiana (overruling a 1985 precedent on an accused person’s waiver of the right to counsel during police interrogations).

  And despite his commitment to narrow rulings and a modest role for the Court in public policy debates, Roberts had delivered two major “jolts” to the legal system in the Seattle-Louisville school cases and the District of Columbia gun case. The biggest, and perhaps most unpopular jolt since the 2000 Bush v. Gore decision, was still to come.

  • • •

  As September eased into October and the start of a new term, Citizens United’s Bossie and Boos once again waited and waited. They planned their schedules around the days on which the Court was sitting because when their decision did come down, they had to be ready to respond to media requests for reaction. Olson was in California, where he, along with David Boies, who had represented Al Gore in Bush v. Gore, was leading the legal challenge to California’s ban on same-sex marriage—Proposition 8—a case that would reach the Court in 2012. As for Kagan and her office, well, this was a new term with cases for the government to pursue.

  Guns and the Second Amendment were back on the docket in McDonald v. City of Chicago, undoubtedly the blockbuster of the term, regardless of its outcome. Alan Gura, the aggressive young lawyer who won the District of Columbia gun case just one year earlier, had filed the McDonald case on the day of that landmark victory. He was now asking the justices to go a step further and apply the Second Amendment’s individual right guarantee to all states and local jurisdictions.

  The Roberts Court also was continuing its fascination with the First Amendment. Although nearly every term for years had held a healthy number of First Amendment cases, the justices would decide a remarkable five, in addition to Citizens United, in its October 2009–10 term. The five cases implicated speech, association, and religious rights protected by the amendment.

  Anthony Kennedy is the closest to an absolutist on the First Amendment since Justice Hugo Black, appointed by President Franklin Roosevelt, served on the Court from 1937 to 1971. Black believed the Court should enforce constitutional rights literally, especially the freedom of speech in the First Amendment. On that amendment’s command that Congress “shall make no law . . . abridging the freedom of speech,” Black thundered, “No law means no law!” The First Amendment in his view was the cornerstone of liberty and freedom of speech was its heart.

  Kennedy, however, is no absolutist or literalist; in fact, he has always said he has no particular judicial philosophy, unlike his colleagues, Scalia and Breyer. Instead, his personal views of what liberty and democracy mean, and, in particular, his respect for individual dignity have animated his most important rulings since taking his seat on the Court in 1988.

  Those three concepts—liberty, democracy, and individual dignity—lead him to be especially skeptical of government regulation of speech because, as he wrote in the 2002 First Amendment case, Ashcroft v. Free Speech Coalition, “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”

  Kennedy is the most reliable First Amendment vote on the Roberts Court, said one of his colleagues, even more than Roberts, who has written a number of stirring decisions protective of particularly offensive speech. But Kennedy has been less protective of some types of speech, his critics and First Amendment scholars note, and that shows a lack of fidelity to the principles he claims to espouse. One example was the 2006 ruling in Garcetti v. Ceballos, where he led the Roberts Court’s conservative wing to hold that public employees cannot claim the First Amendment’s protection for statements they make in the course of their public duties. Richard Ceballos was a deputy district attorney who discovered false statements by a sheriff in a search warrant affidavit. He informed his supervisors, but when they decided to go forward with the case anyway, he spoke to defense counsel about the false statements and was subpoenaed to testify. He subsequently was demoted and barred from working on murder cases. Ceballos sued, claiming retaliation for his cooperation with the defense, which, he said, was protected by the First Amendment. Kennedy basically said government employees who speak in the context of their employment are not speaking as citizens.

  Since O’Connor’s departure in 2006, Kennedy has been the so-called swing vote in cases that divide the justices by ideology, a position of power that some of his colleagues believe he enjoys. However, the one area of the First Amendment in which Kennedy has been unfailingly consistent is the government’s regulation of campaign finances. And it was not surprising, given his vehement dissents in Austin in 1990 and McConnell in 2003, that he would lead the effort to overturn both decisions in Citizens United.

  From the fall into the winter of 2009, impatience among campaign finance reformers, speech advocates, news media, and others for the decision in Citizens United was building to a crescendo. Editorialists, columnists, and bloggers erupted in headlines: “Supreme Court about to Gut Campaign Finance Laws . . . and Democracy?” “Still no decision on Bombshell Supreme Court Finance Case,” “Corporations Aren’t People Yet.”

  On Wednesday, January 20, 2010, a lawyer who worked with Olson on the case phoned Bossie to say the Court clerk’s office had called. The Court would be sitting the next day—an unusual Thursday session—and probably would release a decision. When the Thursday session was announced, word spread like tweets on steroids that the reason must be the decision in Citizens United.

  At 10:01 am that morning, in a packed courtroom, Kennedy ended the suspense by reading in his slightly nasal, stern fashion that a five-justice majority had eliminated the limits on corporate spending in federal elections. The decision also was assumed to apply to independent expenditures by unions and would undoubtedly result in the demise of state law prohibitions as well.

  The decision had taken nearly five months since reargument in the case; the likely reason was the time taken to produce the five opinions totaling 176 pages by a bitterly divided Court. Kennedy, Roberts, Scalia, and Thomas all wrote separate opinions, with Kennedy’s the lead. Stevens, joined by Ginsburg, Breyer, and Sotomayor, wrote a passionate 90-page dissent.

  In opening his majority opinion, Kennedy ironically said, “In this case we are asked to reconsider Austin and in effect McConnell,” ironic because it was the Court, not the parties, that had posed the question. Kennedy, who stumbled and lost his place at times during his reading, said the 1990 Austin decision and the 2003 McConnell ruling, both of which imposed restrictions on corporate expenditures in elections, were “outliers” in the Court’s First Amendment campaign finance rulings. By overruling both, he said the Court was returning to the principle established in its landmark 1976 campaign finance Buckley decision that the government may not suppress political speech on the basis of the speaker’s identity.

  T
he government could not identify a sufficient reason to justify limits on the political speech of non-profit or for-profit corporations, he wrote. The censorship imposed by Austin and McConnell, he dramatically intoned, was “vast in its reach.”

  However, the Court’s decision did more than simply return to Buckley’s essential principle. Significantly, it narrowed the definition of corruption, the government’s justification for regulating campaign money.

  In the past, the Court had said that the hallmark of corruption is the financial quid pro quo—dollars for political favors, said Kennedy. But by definition, an independent expenditure is political speech that is not coordinated with a candidate, he said, adding, “The fact that speakers may have influence over or access to elected officials does not mean that these officials are corrupt. The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”

  Stevens called out Kennedy on his view of corruption and independent expenditures by reminding him of the Court’s recent decision in the West Virginia mine company case—Caperton—where the justices held that a state judge must step aside from an appeal brought by a man who had made large expenditures to get the judge elected. In that decision, Stevens said, the Court had accepted the premise that, at least in some circumstances, independent expenditures will raise “an intolerable specter of quid pro quo corruption.” One consequence of the Citizens United decision, he added, would be to unleash “the floodgates of corporate and union general treasury spending” in judicial races. Kennedy parried with just one unconvincing paragraph that Caperton’s holding was limited to the rule that the judge must be recused, “not that the litigant’s political speech could be banned.”

  Kennedy also rejected the argument that the law was not banning corporate speech because corporations could speak through their political action committees. He called PACs burdensome, expensive to administer, and subject to extensive regulation. The Federal Election Commission, he added, had created a regulatory regime analogous to a prior restraint of speech because of its ambiguous, multi-factor tests for determining electioneering communications. Thomas wrote separately, saying that the majority had not gone far enough. He said the disclosure, disclaimer, and reporting requirements in McCain-Feingold were unconstitutional as well. No one joined Thomas’s opinion.

  Scalia butted heads with Stevens over the “original understanding” of the First Amendment and the Framers’ views of corporations. Stevens argued that the Framers considered it a given that corporations could be regulated for the public welfare and they had little difficulty distinguishing between corporations and human beings when they wrote the First Amendment. “It was the free speech of individual Americans that they had in mind,” he insisted. Scalia countered that the amendment was written in terms of “speech,” not speakers.

  Roberts too wrote separately and, not surprisingly, devoted his opinion to judicial restraint and stare decisis, principles to which he had expressed a strong commitment during his confirmation hearings. He said the majority was correct to reject narrower grounds for ruling in Citizens United’s favor because “we cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.” After moving step by step through the analysis for deciding whether a prior decision should be respected, Roberts concluded that continued adherence to Austin threatened the principled development of the Court’s First Amendment case law.

  Justice Stevens, eighty-nine, haltingly read his dissent’s summary for twenty minutes and had difficulty pronouncing similar-sounding words, such as “corporations” and “corruption.” (He later said his performance that morning was a factor in his decision to retire from the Court that term.) He had assigned to himself the Citizens United dissent after Souter left the Court, and it owed so much to Souter’s own draft dissent that Stevens had included a footnote thanking him. He was later persuaded by colleagues to remove the footnote. Despite his trouble reading that morning, his message in his dissent was clear. Corporations are not human beings, he insisted, and have no consciences or desires. “They are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

  He emphasized that the Court had improperly reached out for the question it was now answering and reargument did not cure that fundamental problem. The Court could have found narrower grounds on which to rule for Citizens United, and it failed to respect its precedents.

  “Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law,” he said. He warned that the ruling “threatens to undermine the integrity of elected institutions around the country.”

  Lost in the rush of overwhelmingly negative public reaction to the Court’s decision was the fact that corporations still were prohibited from making direct contributions to candidates. However, scholars, lawmakers, and others realized immediately that the Citizens United decision, resting on the principle that political speech cannot be suppressed on the basis of the speaker’s identity, threatened the prohibition on direct contributions, as well as the McCain-Feingold law’s central ban on so-called soft money contributions to political parties. In fact, lawsuits challenging those prohibitions were filed soon after.

  Six days later, President Obama denounced the decision during his State of the Union address to Congress. Six justices, including the chief justice, sat in front as the president said, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.” Alito was caught on camera shaking his head and mouthing the words, “Not true,” an image later replayed countless times. Roberts pushed back gently in a later speech, saying, “The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court—according to the requirements of protocol—has to sit there expressionless, I think is very troubling.”

  Obama’s comments in the speech were solely the work of the White House. At the time, Principal Deputy Solicitor General Neal Katyal was concerned that the Court, with which the solicitor general’s office has a special relationship of trust, might think his office had participated in the speech decision. Katyal, who once worked with Roberts when both were in private practice, went to see the chief justice to tell him that the office had nothing to do with the speech.

  There was speculation that Roberts would not attend the State of the Union the following year, but in a display of statesmanship and courage, he did attend with several other justices. Justice Alito had a prior commitment: a speech in Hawaii.

  Some justices in the majority in Citizens United were surprised and puzzled by the intense criticism of the decision. “Citizens United just restored Buckley v. Valeo. That’s all it did,” said Scalia one afternoon in his chambers. “It had been effectively overruled in Austin. There’s all this hullabaloo that the Court is upsetting prior jurisprudence. It upset prior jurisprudence which had upset prior jurisprudence which everybody had thought was the law for forty years.”5

  A dissenting justice was not surprised by the public reaction, but instead, “I was surprised by my colleagues’ reaction after the O’Connor-Stevens opinion in McConnell [2003 decision reaffirming the corporate spending ban]. I thought that [decision] might have lasted a little longer.”

  There are, said another justice who was in dissent, “tremendous psychological temptations to overrule things. You think, ‘This is going to be my only chance.’ But it’s somebody just like me who ruled. You have a lot of temptations and my advice is to resist them. Keep your predilections in line.”

  But for the most part, justices who were in the majority remain convinced that they were right and were surprised that the public reaction was not more balanced; after all, this was the First Amendment and at stake
was the political speech not just of big for-profit corporations but also newspapers, book publishers, and non-profit corporations.

  They showed their steadfastness in 2012 when the state of Montana tried to save its hundred-year-old ban on corporate campaign expenditures by asking the justices to either affirm its own state supreme court, which had upheld the ban, or reconsider Citizens United as it applied to state elections. In an unsigned decision that June, the Court summarily reversed the Montana Supreme Court with a cursory statement that Citizens United applied. Breyer—writing separately for himself and Justices Ginsburg, Sotomayor, and Kagan—said the four would have voted to hear Montana’s case if there had been any indication that the other five justices were open to reconsidering the basis for Citizens United in view of the huge influx of money in the congressional and presidential campaigns that year.

  • • •

  Despite the claim by Scalia and others that Citizens United simply restored the state of the law to 1976’s Buckley v. Valeo, which prohibited limits on independent expenditures, the decision by the Roberts Court majority did more. Supreme Court decisions have consequences, and not just for the parties involved in the case.

  Citizens United’s direct effect was to free corporations and unions to use their treasury funds to air political ads advocating the election or defeat of federal and state candidates. They no longer were required to use the vehicle of a PAC, financed through individual contributions that were limited by law. However, roughly a month after the Court ruled, a federal appellate court in Washington, D.C., relying on the Citizens United decision, held that if limits on independent expenditures were unconstitutional, then contributions to PACs that make only independent expenditures (not coordinated with a candidate) could not be constitutionally restricted. That combination of Citizens United and the ruling in SpeechNow.org v. FEC gave birth to the “Super PACs” that dominated the 2012 election season. These Super PACs can raise and spend unlimited amounts as long as they do it independent of any candidate.