On the morning of September 9, 2009, a car arrived outside the Justice Department to take the government’s team to the Supreme Court for the reargument of Citizens United. Elena Kagan, the newly appointed Solicitor General, took the front seat, and three of her deputies piled into the back.
She had only been confirmed by the Senate a few days before Citizens United the re-argument, and this reargument would mark her début before the Justices. Kagan, at the age of forty-eight, had never argued a case before any appellate court. Citizens United would be the first time, but I imagine she probably felt after the disastrous first argument the responsibility lied with her.
Elena Kagan had one of the more unusual career paths of anyone who would later be appointed to serve on the court, including this first argument before the court where she was primarily a sacrificial lamb be placed before the altar of the court. She majored in history at Princeton summa cum laude, and then Oxford to obtain a master’s in philosophy, before getting her doctorate in jurisprudence.
Kagan had a much greater rounded collegiate and was able to digest arguments from the historical and philosophical lenses since William O. Douglas. She began teaching at University of Chicago Law School in 1991 where she would teach for four years, leaving only when President Bill Clinton invited her to be his associate counsel. Kagan received two major promotions during her four years at the White House. First, she was appointed Deputy Assistant to the President for Domestic Policy. Soon after, she was appointed Deputy Director of the Domestic Policy Council. Clinton actually attempted to put her on the bench before he left office by appointing her to the D.C. Circuit, but the Senate didn’t confirm the nomination.
As a result, Kagan returned to academia in 1999. She started as a visiting professor at Harvard Law. In 2001, she was given full professor status, but Kagan climbed so far and so quickly up the ladder that she became the dean of Harvard Law School in 2003, a mere two years later. She would serve as dean for five years before Obama brought her back to Washington to be his SG in 2009.
Kagan thus would become one of the rare justices in recent times to have never had any prior judicial service.
At precisely ten o’clock AM on September 9th, the Chief Justice called Ted Olson to the lectern. Like everyone associated with the case, Olson 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 had 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.
Ginsburg brought up one potential source of future controversy.
“Mr. Olson,” Ginsburg said, “are you taking the position that there is no difference” between the First Amendment rights of a corporation and those 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.”
“Would that include today’s mega-corporations, 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.”
When the questioning turned to Kagan she presented a new look for the SG’s office to the court.
Like many members of the S.G.’s office, Kagan thought that the women’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 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 2—”
“Wait, wait, wait, wait,” Scalia interrupted.
Given the circumstances, Kagan must have known that she had 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 would 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.”
As the argument proceeded, 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, more or less, “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?”
Ginsburg did Kagan the favor of allowing her to undo some of the damage from Stewart’s argument in March. “May I ask you one question that was highlighted in the prior argument, and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies?” Ginsburg said. “Last time, the answer was yes, Congress could, but it didn’t. Is that still the government’s answer?”
“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.” Kagan said that Congress could not ban a book. But the damage had been done.
After the second argument of Citizens United, the votes were the same as after the first one. Roberts, Scalia, Kennedy, Thomas, and Alito voted to overturn the judgment of the F.E.C., with Stevens, Ginsburg, Breyer, and Sonia Sotomayor (who had replaced Souter) on the other side. Because of the much broader Questions Presented, Roberts was now well within his rights to resurrect the earlier draft opinion and lead the charge to bury decades of campaign-finance law.
Roberts assigned the opinion in Citizens United to Anthony Kennedy again. It was one of Robert’s strategic moves to hand the decision to the court’s centrists.
When Alito had replaced O’Connor, in 2006, the Court was locked into a consistent four-four conservative-liberal split, and Kennedy became the most powerful Justice in decades. On controversial issues—including abortion, affirmative action, civil rights, the death penalty, and federal power, among others—he controlled the outcome of cases. For the previous twenty years or so, O’Connor had most often held the swing vote, though she never controlled as many cases as Kennedy has.
There was a striking difference in the ways that O’Connor and Kennedy handled being the swing vote. O’Connor was a gradualist, a compromiser, a politician who liked to make each side feel that it won something. When she was in the middle in a case, she would, in effect, give one side fifty-one per cent and the other forty-nine. In Planned Parenthood of Southeastern Pennsylvania v. Casey, in 1992, she saved abortion rights; in Grutter v. Bollinger, in 2003, she preserved racial preferences in admissions for the University of Michigan law school; in Rasul v. Bush and Hamdi v. Rumsfeld, in 2004, she repudiated the Bush Administration’s approach to the detainees held at Guantánamo Bay. O’Connor split the difference each time. Yes to restrictions on abortion but no to outright bans; yes to affirmative action but no to quotas; yes to the right of detainees to go to court but no to the full constitutional rights of American citizens. In describing her judicial philosophy, O’Connor liked to point to the sculpted turtles that formed the base of the lampposts outside the Supreme Court. “We’re like those turtles,” she would say. “We’re slow and steady. We don’t move too fast in any direction.”
Anthony Kennedy was no turtle. He tended to swing wildly in one direction or the other. When he was with the liberals, he could be very liberal. His opinion in Lawrence v. Texas, the 2003 opinion striking down laws against consensual sodomy, contains a lyrical celebration of the rights of gay people. In Boumediene v. Bush, the 2008 case about the rights of accused terrorists, he excoriated the Bush Administration and Congress. “To hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, ‘say what the law is,’ ” he wrote, quoting Chief Justice John Marshall’s famous words from 1803, in Marbury v. Madison.
No one relished saying “what the law is” more than Kennedy. But in his conservative mode Kennedy could be harshly dismissive of women’s autonomy, as in Gonzales v. Carhart, the 2007 late-term-abortion law case. (“Some women come to regret their choice to abort the infant life they once created and sustained,” he noted. “Severe depression and loss of esteem can follow.”) Kennedy is believed to have written the most notorious sentence in the majority opinion in Bush v. Gore, acknowledging that the Court acted for the sole benefit of George W. Bush: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”
Kennedy was not a moderate but an extremist—of varied enthusiasms. All the Justices knew that Kennedy’s views were most extreme when it came to the First Amendment. In the Roberts Court, there was often a broad consensus about protecting freedom of speech. Some areas of the law that had once been controversial, such as the suppression of dangerous or unpopular views, were resolved with little disagreement. Still, even in a legal system that protects free speech, the government had long been able to regulate speech in all kinds of ways. Copyright infringement was subject to civil and criminal remedies; extortion and other crimes involving the use of words were routinely punished.
Campaign contributions, if they were considered “speech” at all, had been regulated for more than a century. But Kennedy was extremely receptive to arguments that the government had unduly restricted freedom of speech in a manner reminiscent of Douglas and Brown—and for Kennedy this was especially true in the area of campaign finance. Throughout his long tenure on the Court, he had dissented, often in strident terms, anytime his colleagues upheld regulations in that area. In addition, Kennedy loved writing high-profile opinions.
Roberts, during his confirmation hearing, made much of his judicial modesty and his respect for precedent. If the Chief had written Citizens United, he would have been criticized for hypocrisy. But by giving the opinion to Kennedy, he obtained a far-reaching result without leaving his own fingerprints. Kennedy had already written a draft majority opinion in the case. He would write even more expansively than Roberts had done in his initial response draft in this case.
Kennedy did not disappoint the Chief Justice. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people,” he wrote for the Court in his familiar rolling cadence. “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”
These rhetorical flights were a long way from the gritty business of raising and spending campaign money.
Kennedy often saw First Amendment issues in terms of abstractions. Citizens United, at its core, concerned a law that set aside a brief period of time (shortly before elections) when corporations could not fund political commercials. To Kennedy, this was nothing more than total censorship:
“By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.”
Moreover, Kennedy wrote, “The Court has recognized that First Amendment protection extends to corporations. This had been true since 1886, and speech, especially political speech, could never be impeded.”
“The censorship we now confront is vast in its reach,” Kennedy wrote. “The Government has muffled the voices that best represent the most significant segments of the economy. And the electorate has been deprived of information, knowledge and opinion vital to its function. By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.”
“If the First Amendment has any force,” Kennedy concluded, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
So McCain-Feingold, and two Supreme Court precedents, had to be mostly overruled. The Constitution required that all corporations, for-profit and nonprofit alike, be allowed to spend as much as they wanted, anytime they wanted, in support of the candidates of their choosing. For the moment, at least, the ban on direct corporate contributions to candidates remained intact.
For decades, moderate Republicans had played crucial roles on the Supreme Court: John Marshall Harlan II, in the fifties; Potter Stewart, in the sixties; Lewis Powell, (excuse me, but on many issues Powell could be quite extreme as is frequently noted, but apart of his dedicated protection of business interests, Powell was generally quite temperate and notably extended the same reasoning towards providing his vote with the majority in Roe) in the seventies and eighties; and O’Connor, in the nineties and the new millennium.
In his early years on the Court, Justice John Paul Stevens had settled into the ideological center, between William Brennan and Thurgood Marshall, on the left, and Rehnquist, then an Associate Justice, and Chief Justice Warren Burger, on the right. Stevens’s voting record was roughly in line with the Republican appointees such as Stewart, Powell, Harry Blackmun, and O’Connor. But as Justices were replaced by more contemporary Republicans, Stevens often found himself described as a liberal. He didn’t move to the left, especially on the death penalty. But his evolution into the leader of the liberal wing was mostly the result of the rest of the Court moving so far to the right.
More often than his liberal colleagues, Stevens voted to review controversial cases. Ginsburg and Breyer, fearing disaster if the Court took these cases, tended to prefer not to address them.
But John Roberts and Samuel Alito sapped John Paul Stevens’s optimism. In less than five years, the pair of Bush appointees, joined by Scalia, Thomas, and, usually, Kennedy, had overturned many of the Court’s precedents. Unlike his new conservative colleagues, Stevens, like Souter, thought that the law should develop slowly, over time, with each case building logically on its predecessors. The course of Citizens United represented everything that offended Stevens most about the Roberts Court.
In some ways, Stevens’s greatest objections were procedural. Like Ginsburg (and almost no one else during his tenure), Stevens had a deep regard for federal procedure. He was happy to wade into the subject for hours. (Stevens was the only Justice who generally wrote his own first drafts of opinions.)
So for Stevens it was especially galling that the Court converted Citizens United from a narrow dispute about the application of a single provision in McCain-Feingold to an assault on a century of federal laws and precedents.
To Stevens, it was the purest kind of judicial activism. Or, as he put it in his dissenting opinion, “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. The case should have been resolved by simply ruling on whether McCain-Feingold applied to “Hillary: The Movie,” or at least to nonprofit corporations like Citizens United.”
Stevens was just warming up. His dissent was ninety pages, the longest of his career. He questioned every premise of Kennedy’s opinion, starting with its contempt for stare decisis. He went on to refute Kennedy’s repeated invocations of “censorship” and the “banning” of free speech. The case was merely about corporate-funded commercials shortly before elections. Corporations could run as many commercials as they liked during other periods, and employees of the corporations (by forming a political-action committee) could run ads at any time.
Stevens was especially offended by Kennedy’s blithe assertion that corporations and human beings had identical rights under the First Amendment. “The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare,” Stevens wrote. “Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.”
“Congress and the courts {had} drawn distinctions between corporations and people for decades”, Stevens wrote, noting that, “at the federal level, the express distinction between corporate and individual political spending on elections stretches back to 1907, when Congress passed the Tillman Act.”
As for Kennedy’s fear that the government might regulate speech based on “the speaker’s identity,” Stevens wrote, “We have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees.” (emphasis mine).
And Stevens, a former WWII Navy man, could not resist a generational allusion: he said that Kennedy’s opinion “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.” (Stevens’s law clerks didn’t like the dated reference to Tokyo Rose, who made propaganda broadcasts for the Japanese, but he insisted on keeping it.)
Stevens’s conclusion was despairing. “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt,” he wrote. “It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”
It was an impressive dissent, but that was all it was. Anthony Kennedy, on the other hand, had completely returned American politics and the American courts and handed corporations the power to return to the gilded era in both.
The Court would next strike down Arizona’s system of public financing of elections, which the state had passed after a series of political scandals involving fund-raising. The Arizona system gave additional funds to candidates for certain state offices who were being heavily outspent by their privately funded opponents.
By the customary vote of five-to-four, with an opinion by Roberts, the Court declared the system unconstitutional. As Kennedy had in Citizens United, Roberts said that governments could never take steps to equalize opportunities for candidates in electoral contests. “ ‘Leveling the playing field’ can sound like a good thing,” he wrote. “But in a democracy, campaigning for office is not a game. In a democracy, campaigning for office is not a game. It is a critically important form of speech. The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom—the ‘unfettered interchange of ideas. ”
So in Citizens United, instead of leveling the playing field, they 1) Enriched the TV networks 2) Gave ore power to the super rich 3) Enhanced the income and number of lobbyists 4) Sped up the process in wealth inequity 5) Shrank even further the middle class 6) Gave more wealth to the super rich (stolen from the middle and working classes whose income was greatly reduced at the same time [at least for the middle income class] their share of the income tax - in terms of percentage increased all out of proportion. Good job John Roberts