At first, Roberts did write an opinion roughly along those lines, and Kennedy wrote a concurrence that said the Court should have gone much farther. Kennedy’s opinion said the Court should declare McCain-Feingold’s restrictions unconstitutional, overturn an earlier Supreme Court decision from 1990, and gut the Tillman Act prohibitions on corporate giving to campaigns. But after the Roberts and Kennedy drafts circulated, the conservatives began rallying to Kennedy’s more expansive resolution of the case. Roberts proposed to withdraw his own opinion and let Kennedy write for the majority. Kennedy then turned his concurrence into an opinion for the Court.
The new majority opinion—which transformed Citizens United into a vehicle for rewriting decades of constitutional law—shocked the liberals. Stevens assigned the main dissent to Souter, who was in the last weeks of his tenure on the Court. (He was actually working on the opinion when he announced his departure.) The Kennedy opinion reflected everything Souter had come to loathe about the Roberts Court—its disrespect for precedent, its grasping conservatism, its aggressive pursuit of political objectives. Worse yet, Roberts’s approach to Citizens United contradicted a position he had taken earlier in the term. At the argument of a death penalty case known as Cone v. Bell, Roberts had berated at length the defendant’s lawyer, Thomas Goldstein, for his temerity in raising an issue that had not been addressed in the briefs. Now Roberts—the chief justice—was doing precisely the same thing to upset decades of settled expectations.
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 Kennedy and Roberts of violating the Court’s own procedures to engineer the result Roberts coveted. The dissent, had it been published, would have been an extraordinary, bridge-burning farewell to the Court by Souter.
Roberts didn’t mind spirited disagreement on the merits of any case, but he worried that Souter’s attack might damage the Court’s credibility, or his own. So the chief came up with a stroke of strategic genius. He would agree to withdraw the majority opinion and put Citizens United down for reargument in the fall. For the second argument, the Court would write Questions Presented that left no doubt about the stakes of the case. The proposal put the liberals in a box. They could no longer complain about being sandbagged, because the new Questions Presented would be unmistakably clear. But—as Roberts knew—the conservatives would go into the second argument already having five votes for the result they wanted. With no other choice (and no real hope of ever winning the case), the liberals agreed to the reargument.
Rearguments were very rare. There had been none of this kind since Warren Burger’s days as chief justice. So, on June 29, 2009, the last day of the term, the Court surprised the litigants—and the political world—by issuing the following brief order: “This case is restored to the calendar for reargument.” The parties were directed to file new briefs on a single issue:
For the proper disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. §441b?
Translated into English, the Court’s order told the parties that the justices were considering overruling two major decisions in modern campaign finance law. Specifically, the Court was weighing whether to overturn its recent endorsement of McCain-Feingold. As every sophisticated observer of the Court knew, the Court did not ask whether cases should be overruled unless a majority of the justices already wanted those cases overruled. And Roberts and his allies were so impatient to overturn these precedents that they were not even going to wait for the first Monday in October. The second argument in Citizens United was set for September 9, 2009.
13
THE ROOKIE
On the morning of September 9, 2009, a car pulled into the Justice Department courtyard to take the government’s team to the Supreme Court for the reargument of Citizens United. Elena Kagan, the solicitor general, took the front seat and three of her deputies piled into the back. She had been confirmed by the Senate a few days before the first Citizens United argument, and the reargument would mark her debut before the justices. Kagan, at the age of forty-nine, had never so much as argued a single case in any courtroom. Citizens United would be the first time.
“C’mon guys,” she said to those in the back. “It’s my first day. Psych me up!”
The deputies looked at one another, and after a lengthy pause Malcolm Stewart whispered, “Go get ’em.”
“Ugh,” Kagan said. “You guys suck!”—and the laughter broke the tension in the car.
At precisely ten, the chief justice called Ted Olson to the lectern. Like everyone else associated with the case, he could tell from the new Questions Presented that the Court was leaning his way—heading for a ruling that was far broader than the one he originally sought. Olson argued cautiously, as if protecting a lead.
The liberal quartet of justices, recognizing that their position was probably hopeless, did their best to raise the alarm with the public if not with their colleagues. Ruth Ginsburg, surprisingly astute at judging popular opinion, brought up one potential source of future controversy.
“Mr. Olson,” Ginsburg said, “are you taking the position that there is no difference in the First Amendment rights of an individual? A corporation, after all, is not endowed by its creator with inalienable rights. So is there any distinction that Congress could draw between corporations and natural human beings for purposes of campaign finance?”
“What the Court has said in the First Amendment context, over and over again,” Olson replied, “is that corporations are persons entitled to protection under the First Amendment.” He might well have added that the principle of corporations as people went back to the strange case of Santa Clara County in 1886.
“Would that include today’s megacorporations, where many of the investors may be foreign individuals or entities?” Ginsburg went on.
Olson was ready: “The Court in the past has made no distinction based upon the nature of the entity that might own a share of a corporation.”
Kagan’s first decision was apparent even before she began speaking. Like many other members of the SG’s office (especially women), Kagan thought the woman’s version of the morning coat looked ridiculous. Through intermediaries, she had asked the justices if they would mind if she appeared in a normal business suit. None objected, and that was what she wore.
“Mr. Chief Justice, and may it please the Court,” Kagan began, “I have three very quick points to make about the government’s position. The first is that this issue has a long history. For over a hundred years Congress has made a judgment that corporations must be subject to special rules when they participate in elections, and this Court has never questioned that judgment.
“Number two—”
“Wait, wait, wait, wait,” said Scalia.
And so it went. Kagan knew she had probably launched herself on a suicide mission. Her best hope was to limit the damage, perhaps by persuading the Court to strike down this particular application of McCain-Feingold rather than invalidate the entire law. Or, as Kagan put it to Roberts, “Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes.”
Stevens tried to help Kagan along these lines, suggesting that the Court could resolve the case with a narrow ruling. For example, the justices could create an exception in the McCain-Feingold law for nonprofits like Citizens United or for “ads that are financed exclusively by individuals even though they are sponsored by a corporation.” Grasping the Stevens lifeline, Kagan said, “Yes, that’s exactly right.”
“Nobody has explained why that wouldn’t be a proper solution, not nearly as drastic,” Stevens went on. “Why is that not the wisest narrow solution of the problem before us?”
“The government’s answer has changed, Justice Ginsburg,” Kagan replied, and the well-informed audience in the courtroom laughed. “We took the Court’s own reaction to some of those other hypotheticals very seriously. We went back, we considered the matter carefully, and the government’s view is that although 441b does cover full-length books, that there would be a quite good as-applied challenge to any attempt to apply 441b in that context.” Better late than never, perhaps, but the concession probably mattered little at this point. Especially for a first argument, Kagan was poised, self-confident, even relaxed—and doomed.
Kagan’s new subordinates in the solicitor general’s office were not surprised by her self-confidence. In theory, the solicitor general himself (Kagan was the first woman to hold the job) personally reviews every brief that goes out in his name. In reality, most solicitors general picked a few high-profile issues that interested them and basically passed off the others to the career lawyers. The SG staff quickly learned that Kagan had other plans.
On her first day as SG, almost as a courtesy, Kagan was presented with a final draft of the government brief in a numbingly tedious case called Cuomo v. Clearing House Association. (It concerned state versus federal rules regarding certain banking regulations.) The case was the type that most solicitors general gave only a cursory review. Kagan disappeared into her office with the draft and emerged hours later with a copy that seemed to have more scribbled corrections in red than typescript. Her staff knew that Kagan had not practiced law in two decades. She had never written a Supreme Court brief in her life. Furthermore, the lawyers regarded themselves, with good reason, as an elite within an elite. As Kagan’s handiwork was passed around the office, the nearly universal reaction was, “What the fuck?”
Certainly there were no complaints about Kagan’s work ethic. She was in the office seven days a week. One of her briefs went through fifty-four drafts. To prepare for her Citizens United argument, she read every case cited in every brief—which came to about three thousand pages of material. Kagan subjected herself to the same rigorous moot court ordeal that every member of the staff endured before a Supreme Court argument. To prepare for a thirty-minute argument before the justices, the advocate submitted first to an hour-long grilling from three line assistants, a deputy solicitor general, and the junior lawyer who worked most closely on the case. In addition, the SG invited to the moot courts any government lawyers who had a special familiarity with the issues in the case. Some moots had a dozen lawyers in the audience; some had forty. After the hour of rehearsal, there was then another hour spent analyzing the advocate’s answers. And the lawyers in the SG’s office went through this entire process twice before any argument. So did Kagan.
After what turned out to be a fairly brief period, Kagan’s staff came to terms with the solicitor general’s hyperactive red pen. The lawyers saw that Kagan was blunt, funny, occasionally obnoxious, and usually right. What they did not know was that Elena Kagan was working from a very specific model.
Elena Kagan grew up on West End Avenue, on the Upper West Side of Manhattan, at a time when its canyon of apartment buildings were occupied by more civil servants and social workers than, as was later the case, corporate lawyers and investment bankers. Like the Kagan family, the neighborhood was comfortable, not chic; Jewish, but not devout. When Kagan became a public figure, it was widely suggested that she had modeled herself after her father, who was described as a crusading public interest lawyer, rather than her mother, a schoolteacher. In fact, the reverse was true.
Robert Kagan had a real estate law practice based largely around the ongoing conversions of apartment buildings (like the Kagans’ own) from rentals to cooperatives. It was true that he did some work for neighborhood groups, but Bob Kagan, a gentle and modest man, was no crusader. Gloria Kagan was another story altogether.
Decades after Gloria taught her last class at Hunter College Elementary School, there are dozens if not hundreds of her former students who still dream about her. Some, clearly, have nightmares. Then as now, Hunter was one of New York’s handful of selective public schools, and it has attracted generations of multiethnic strivers. Gloria taught language arts and social studies to fifth and sixth graders. She tapped into her students’ preadolescent ambition, demanding excellence and rigor. Some students wilted, but many thrived and ascribed life-changing powers to their diminutive teacher. Of course, Gloria came of age at a time when the professional options open to a woman pretty much began and ended with teaching school (and nursing). As many who knew both of them observed, Gloria Kagan was Elena Kagan, three decades too early.
Elena made the most of the opportunities that were denied her mother. Even at Hunter, where Kagan braved her mother’s legend, she clearly wanted a life beyond the classroom. In her high school yearbook photo, Kagan posed in a judicial robe, with a gavel, and included a quotation from Justice Felix Frankfurter: “Government is itself an art, one of the subtlest of arts.” She went to Princeton, where she ran the editorial page of the college newspaper, and graduated summa cum laude in 1981. (Kagan was the third consecutive Princeton undergraduate appointed to the Supreme Court, following Alito ’72 and Sotomayor ’76. A Manhattanite, Kagan also became the representative of a fourth New York City borough on the Court, with Sotomayor hailing from the Bronx, Ginsburg from Brooklyn, and Scalia from Queens. Currently, no justice comes from Staten Island, the fifth borough.) After a fellowship at Oxford, Kagan joined the class of 1986 at Harvard Law School.*
In certain respects, Kagan’s career at law school resembled that of Obama, who arrived at Harvard five years later. Both plainly intended to put their educations to work in public life. Indeed, their law school experiences made it just as easy to predict a judicial career for Kagan as it was to foresee a political one for Obama. Because of an unaccountably poor grade in torts during her first year—the first and only B-minus of her life—Kagan did not make the law review based on grades. She earned a place through the writing competition. Also like the future president, Kagan avoided the faculty battles over Critical Legal Studies. Like Obama, Kagan was no radical, but rather a committed and serious Democrat. And like him, she sought out and went to work for Professor Laurence Tribe, the putative justice of the Democratic Supreme Court in exile (or in waiting.) Tribe chose only the best students to work for him, and only those who shared Tribe’s politics—and his ambition—selected him as a mentor.
Here, though, the parallels to Obama end. Kagan had neither the temperament nor the inclination for introspection that led Obama to write Dreams from My Father. Kagan didn’t need a whole book to outline her goals, and while she would never have been so vulgar as to voice the hope, as Alito did in his college yearbook, to “warm a seat on the Supreme Court,” her basic ambition was the same.
After law school, Kagan’s life more closely paralleled that of another future colleague—John Roberts. In every generation of lawyers, a few are widely assumed to be headed for great things, possibly even the Supreme Court. That was certainly true for Kagan and Roberts, who graduated from Harvard Law seven years before she did. The art of building a judicial career today requires talents of some subtlety, because the rules changed in recent years. In the pre–Robert Bork era, especially during the early part of the twentieth century, Supreme Court appointments went to major public figures—like Louis Brandeis, the Progressive intellectual; Felix Frankfurter, the impassioned defender of Sacco and Vanzetti; or Hugo Black and Earl Warren, politicians with national reputations. In that bygone time, a lifetime of controversy and accomplishment was all but mandatory for a potential justice.
But the Bork hearings made an outspoken public career—a long paper trail, as it came to be known—more of a liability than an asset. Recently, judicial ambition has called for excellence, intelligence, and caution, all of which Roberts and Kagan had in abundance.
Today, there are just two career tracks for potential judges, one for Republicans and the other for Democrats. It is important to be identified enough with one party to have patrons, but not so closely that you have enemies. The challenge was to be partisan without seeming partisan. By clerking for Henry Friendly on the Second Circuit and then Rehnquist on the Supreme Court, Roberts committed to the Republican track. Kagan went the other way. She clerked for Abner Mikva—the same D.C. Circuit judge who later implored Obama to work for him—and then for Thurgood Marshall, who, in the 1987–88 term, was near the unhappy end of his judicial career. In the period that followed, Kagan’s career seemed a rather obvious marking of time until a Democratic administration came along. First, she spent a couple of years as an associate at Williams & Connolly. (Her duties sometimes included libel checks on the National Enquirer as well as its wackier cousin, the Weekly World News.) Next, she joined the faculty of the University of Chicago Law School. Kagan dutifully did some scholarly writing, mostly about the First Amendment, but her heart was never in the academic world. Later, in confirmation testimony, Kagan referred to herself (accurately, if immodestly) as “a famously excellent teacher,” but not long after she secured tenure, in 1995, she left for a job in the counsel’s office in the Clinton White House.
The Oath: The Obama White House v. The Supreme Court Page 20
