Toobin, the prolific author and CNN legal commentator, broke the news of the behind-the-scene events in an article in the New Yorker, excerpted from his forthcoming book due out in September The Oath: The Obama White House vs. The Supreme Court. In an article that bears the accusatory subhead, “How John Roberts orchestrated Citizens United,” Toobin blames Roberts for converting what could have been a narrow, statutory decision on federal campaign finance law into an aggressive, precedent-overruling decision granting corporations a constitutional right to tilt the political system in favor of the Republican Party.
The sequence of events in Citizens United is public record. The oral arguments in March 2009 were followed by the court’s surprising decision in late June to call for rearguments in September. The court issued its ruling in January 2010 in a forceful majority opinion by the supposedly moderate conservative Anthony M. Kennedy along with a long and passionate dissent by the couort’s senior liberal, John Paul Stevens.
With no named sources, Toobin adds to the public record by disclosing that Roberts initially wrote a self-assigned majority opinion on narrow grounds that failed to gain majority support from the conservative bloc after Kennedy wrote a concurrence calling for a broader decision. Kennedy’s now-majority opinion drew a vigorous dissent from David H. Souter, who pointedly complained about the irregularity of ruling on a question not presented and argued in the case. Stung, Roberts decided to call for a second round of arguments specifically to address the question of overruling the court’s two precedents upholding bans on direct corporate or union spending in political races.
As Toobin writes and as court watchers understood at the time the outcome of the second round of arguments was predetermined. The conservative majority would not have asked about overruling the prior cases unless they planned to follow through as they did. The result, Toobin concludes, “represented a triumph for Chief Justice Roberts.”
“Even without writing the opinion,” Toobin continues, “Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.”
Toobin’s conclusion matches the theme of the new book: a popularly elected, Democratic president versus an unelected court split along partisan lines with Republican appointees in the majority. But one does not have to approve of Citizens United or the Roberts Court’s aggressive stance on campaign finance and other, even hotter-button issues such as abortion and school integration to find the singling out of Roberts unsupported by the evidence.
Omitted in Toobin’s telling is any mention of Roberts’s unusual, 14-page concurring opinion seeking to square his vote in the case with what he calls “the important principles of judicial restraint and stare decisis” that is, respect for precedent. Retracing some of the ground from Kennedy’s opinion, Roberts argues that the first of the two precedents being overruled, Austin v. Michigan Chamber of Commerce (1990), was an “aberration” at the time and was now being defended by the government on untenable grounds not used in the original decision. Stare decisis, Roberts writes, “commands deference to past mistakes, but provides no justification for making new ones.”
With Toobin’s new information, Roberts’s separate opinion can be seen not so much as an affirmative endorsement of the ruling but as a defensive reply to Souter’s unfiled dissent. Roberts, it would seem, was a reluctant bull in the jurisprudential china-breaking. The blame for the activist result in Citizens United lies first with Kennedy, who had dissented in Austin and again in the court’s first ruling to uphold the major parts of the McCain-Feingold campaign finance law, McConnell v. Federal Election Commission (2003). Roberts might have withheld his vote once the rest of the conservatives had shown they were ready to overrule both of the earlier decisions, but a plurality opinion would have left campaign finance law in a muddle as election season was about to get under way.
Toobin closes by highlighting the role that independent campaign expenditures have played and are playing in the 2012 presidential election: the multimillion-dollar spending by gambling mogul Sheldon Andelson in support of Newt Gingrich and by Wyoming financier Foster Friess in support of Rick Santorum. Those expenditures, however, appear to have been made individually, not through corporations; and independent, individual spending on political campaigns has been constitutionally protected since the court’s first brush with modern campaign finance law in Buckley v. Valeo (1976).
By contrast, corporations so far have not rushed into the opening that Citizens United gave them for unlimited political spending without the burden of creating separate political action committees (PACs). The free-campaign speech crowd is applauding Citizens United as a vindication of the First Amendment even as critics are condemning it for tilting the political playing field further toward business interests. Both sides may be exaggerating its impact, just as Toobin is in blaming Roberts personally for the decision.