Friday, September 25, 2009

Sotomayor Shows Restraint; Roberts, Not So Much

      Supreme Court Justice Sonia Sotomayor presented herself during her Senate confirmation hearing as a judge’s judge, committed to following precedent and deciding cases strictly on the facts and law with no ideological agenda. In her courtroom debut on Sept. 9, Sotomayor appeared true to her confirmation persona with questions indicating a cautious approach to a major campaign finance case before the Court.
      The same cannot be said about Chief Justice John G. Roberts Jr. In his confirmation hearings four years ago, he sounded similar themes of non-ideological judicial restraint. But in Citizens United v. Federal Election Commission, Roberts appears ready to lead the Court into scrapping a 20-year-old precedent barring corporations from direct spending in electoral politics and undercutting a century-old law prohibiting corporations from contributing to congressional or presidential candidates.
      Citizens United is one of several cases due for decision during the term that opens on Oct. 5 that will test the Roberts Court’s respect for precedent and judicial restraint. Thus far, the Court’s record is mixed. Roberts and President George W. Bush’s other appointee, Justice Samuel A. Alito Jr., have provided critical votes in a number of 5-4 decisions that have significantly undermined prior rulings but stopped short of overturning them.
      In one criminal law case this year, however, the Court explicitly overturned a 1986 decision that had barred police from interrogating a suspect once a lawyer had been retained or appointed. The 5-4 decision in Montejo v. Louisiana came two months after the Court had issued a post-argument request to the lawyers in the case asking them to address the question whether to overturn the prior decision, Michigan v. Jackson.
      The Court has followed a similar course in Citizens United by asking for a new round of briefs in the case after having heard arguments in March. The case stems from a Federal Election Commission enforcement action against a conservative group for using corporate funds to help finance a 90-minute documentary, Hillary: The Movie, sharply critical of then-Sen. Hillary Rodham Clinton during her 2008 presidential campaign.
      Initially, the case seemed likely to be important but not earthshaking. Citizens United had a number of specific arguments why the documentary should not be subject to provisions of the McCain-Feingold Act that bar the use of corporate funds in election-season broadcast advertising in support of or opposition to a candidate for federal office.
      Before argument, however, the group handed the case to a new lawyer: Theodore Olson, the high-profile conservative and former U.S. solicitor general. Olson asked the justices to reconsider the 2003 decision upholding McCain-Feingold and an earlier ruling, Austin v. Michigan Chamber of Commerce (1990). In Austin, the Court held, 6-3, that states (and, by implication, the federal government) can prohibit corporations from spending money from their treasuries on political campaigns even if the expenditures are independent of the candidate.
      The order asking for new briefs made clear that at least some of the justices were drawn to Olson’s aggressive position in the case. When the case was reargued on Sept. 9, Sotomayor used two sets of question to signal her preference for a narrow decision. She asked Olson whether he was “giving up” on his earlier arguments, which she noted would allow the Court to “avoid the constitutional question.” As a follow-up, the former trial judge asked Olson why the Court should decide the broad constitutional question with no trial record on the many issues implicated.
      Sotomayor again displayed her inclination to judicial restraint during arguments by attorney Floyd Abrams, a well known First Amendment expert representing Senate Republican Leader Mitch McConnell of Kentucky in opposing the law. Abrams suggested the ban on corporate spending in political races was unneeded because about half the states had no such laws on the books. Sotomayor turned the suggestion around: If half the states have such laws and half don’t, she reasoned, would the Court be “cutting off [the] democratic process” by declaring any such law unconstitutional?
      By contrast, Roberts and other conservatives sounded like activist judges ready to upset established legal principles. When Solicitor General Elena Kagan — in her first Supreme Court appearance — referred to the 1909 law barring corporations from making contributions to federal candidates, Justice Antonin Scalia said the Court had never approved the law. Later, Roberts directly questioned the rationale of the Austin ruling. And in his sharpest comment, Roberts sneered at the FEC’s role in deciding how to enforce the law. “We don’t put the First Amendment in the hands of FEC bureaucrats,” he said.
      By the end of the arguments, it seemed clear that the government was destined to lose the case, and the only question was how badly. As Stephen Shapiro, national legal director of the American Civil Liberties Union, pointed out in a Supreme Court preview session, the justices have several ways to decide the case without overturning past decisions. “But it could have done that this spring,” Shapiro continued. “Obviously, they had bigger things in mind.”
      The bigger thing appears to be free rein for corporations to spend on federal or state campaigns without creating separate political action committees and soliciting voluntary contributions for the purpose. Shapiro notes that in the past Roberts has taken the Court “to the verge” of overruling precedent several times and then stopped just short. This time, an activist agenda may overcome that salutary impulse toward judicial restraint.


  1. Suggesting that we re-visit the very old law that gives corporations many of the same constitutional rights as persons hardly sounds like judicial restraint to me. Nor does the part of the question that you cite, in which Sotomayor actually suggested not applying strict scrutiny at all on the grounds that states have been regulating corporate electioneering for quite some time.* None of Sotomayor's colleagues, and not even the government, would take such a radical step; everyone but Sotomayor agrees that you have to at least pretend to apply strict scrutiny to these sorts of regulations (though whether they do so in good faith is another story). Comments like those cross over from judicial restraint to bizarro restraint - sort of a "let's bend over backwards and come up with all sorts of ridiculous arguments that do violence to well-established First Amendment law so as to uphold the statute and reach the result I like" approach.

    * "And so my question to you is, once we say they can't, except on the basis of a compelling government interest narrowly tailored, are we cutting off or would we be cutting off that future democratic process?" Of course, Justice Sotomayor - but the Constitution has a way of cutting off democratic processes at times.