The Road to Citizens United

The Coup Within the Court

The Supreme Court first addressed the struggle over money and politics in a peculiar, almost backhanded way. In 1886, just before the oral argument in an obscure and uncontroversial tax case called Santa Clara County v. Southern Pacific Railroad, Chief Justice Morrison R. Waite told the lawyers, “The court does not want to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution . . . applies to these corporations. We are all of opinion that it does.”

Now this would lead to  then Justice Rehnquist describing  the Santa Clara case, “This Court decided at an early date, with neither argument nor discussion, that a business corporation is a ‘person’ entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment”  in 1978. 

But this was how the court, that presided during the gilded age, denying  nearly all challenges to the businesses in that era when it considered labor activism, labor hours, and or labor protections under the law of contracts, even frequently taking up he constitutionality of state laws that might have tried to grant labor shorter hours or require limitations upon how young a child could be in order to ‘“contract”.

These conclusions were based on their interpretation of the precedent established in the 1819 case of Dartmouth v. Woodward.  In that decision, John Marshall would write that the law of contracts superseded any state interest in protecting the political rights of individuals.  I believe the gilded court were misinterpreting Marshall; that Dartmouth’s protections were about whether a university trustees and charter could still  be valid if such original charter had initially been granted prior to the revolution, or whether the state of New Hampshire’s privatization of  the college violated the law of contracts established under English common law precedent.  And I would not imagine Marshall inferring this applied to any labor protection of people against whatever contract businesses might try to impose on others as an inviolable “contract.”

But that is not how that very gilded court supported the very gilded businesses assumption that they had absolute “immunity” to force contracts upon people that reduced them into servitude. And as Marshall Sahlins pointed out (followed by Rubin, Grimshall, Hart, & Graeber) contracts “began” as a method of obtaining slaves in return for payments that might have been payments to the community, the family, but also frequently individuals who would contract themselves into bondage for a protracted period of time. In other word, slavery seems to have begun as indentured servitude.

But you needn’t rely on them.  The old testament permits contracted slavery that initially ended after six years and they’re release from slavery during the sabbatical years.  I suppose history presupposes the indentured contracts in America were somehow of the same length, but they could be of any length, frequently extended beyond whatever length that might have been initially contracted for.  But those willing to freely contract into servitude became difficult and many more were forced into servitude and those contracts were between the purchaser of the indentured and the ship captain who may have  shanghaied those he sold, or, like the slaves imported from West Africa, purchased from another who had shanghaied them. 

In an early attempt to protect workers from exploitation, New York passed a law prohibiting bakery employees from working more than sixty hours a week or ten hours a day. Probably the most illustrative decision might have been Lochner v. New York (1905), where the Court declared that state law unconstitutional, on the ground that it interfered with the “right of contract” of both the employer and the employee. For a five-to-four majority, Justice Rufus Peckham found the New York law an “unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.”  So in that decision it viewed, once again, that any rights granted by the fourteenth amendment did not grant the state the right to protect individuals from the superseding authority of the law of contracts.

At the same time the court increasingly viewed the fourteenth amendment guarantor of individual protections to apply to corporations.  Using this principle, they struck down antitrust legislation, food-safety rules, child-labor laws, woman’s suffrage, and a tax on income, that were all stricken down as violations of the corporations’ fourteenth amendment rights as well as violations of the law of contracts.  

Of course the entire reasoning behind the progressive era was to challenge corporations from being able to shield themselves via the contract right to limit the rights of workers to reject those contracts or bargain for better ones. 

These contracts were illegitimate and  they were accepted only because no other options were  available for the individual who needed to find the  “necessary {need}for the support of himself and his family.” 

By siding with the gilded corporations and using the fourteenth amendment as a guarantor of corporate rights; in essence the court was able to stand the fourteenth amendment on its head to return the entire workforce into an indentured servitude by allowing the imposition of being forced into working conditions they found intolerable as a right they  could  enforce contracts that pre-existed which preempted challenges to contracts that could not be bargained for. 

This denied the worker any option but an unwilling engagement in contracts that barely provided for the necessary support of oneself and one’s family.

When Theodore Roosevelt took up the progressive mantle upon his succeeding to the presidency in 1901 things began to change.  So many business leaders “donated” to Roosevelt's reelection campaign, including some extremely large donations (for the time)

Steel baron, Henry Clay Frick, would later declare, “We bought the son-of-a-bitch and then he did not stay bought.” Ah! so he didn’t!

Almost as soon as Roosevelt won the election, he turned his attention to passing the first significant campaign-finance-reform act in American history—trying to outlaw the very techniques he had just used to stay in office.  He encouraged congress to pass a restriction on campaign finance by businesses and in 1907 the  first such legislation, the Tillman Act, became law.  The law barred corporations from contributing directly to federal campaigns, and established criminal penalties for violations.  Of course individuals could still contribute any amount, and individuals could be reimbursed by their employers, but it was the first step in what Tilman would described as the legislative goal–to have elections “free from the power of money.”

After the Second World War, candidates began to campaign principally by buying advertisements on television, and that strategy created an ever-increasing need for cash as the television ads became an increasingly important revenue source for the young medium. 

Richard Nixon’s obsession with campaign fund-raising was one of the principal motivations that led to the Watergate scandals (and were the cause of the protests against him that resulted in the famous “Checkers” speech), which after his presidency. began the next wave of campaign-finance reform to prevent Nixon’s abuse of raising to precipitate legally against much of the illegal behavior that the investigations brought out. 

The 1971 law created much of the regulatory structure that endures today. The law imposed unprecedented limits on campaign contributions and spending; created the Federal Election Commission to enforce the act; established an optional system of public financing for Presidential elections; and required extensive disclosure of campaign contributions and expenditures.

Shortly thereafter, The Ayn Randist politician, Eugene McCarthy, who had seized on anti-Viet Nam sentiment, to create a movement towards electing him to the presidency, where he would have attempted to create the Reagan economic revolution twelve years ahead of Reagan.  

Of course the youth who took up his banner didn’t concern themselves much with anything but his anti-Viet Nam rhetoric, and probably didn’t care much about his economic views–after all, Rand was becoming a staple part of the college diet in the 60’s.  

So in 1976 McCarthy’s challenge to the entire campaign restrictions of the ‘71 bill (supplemented in ‘74) was taken up by the Court in Buckley v. Valeo.  The case is name for sitting senator James Buckley, because McCarthy himself probably would not have had standing to bring the case alone, as he no longer was in congress, so he turned to Buckley to actually be the name who was challenging campaign finance, but it was McCarthy who was running the show, and who had enticed Buckley to be named as the Senator being harmed. 

Buckley has left generations to follow wondering about the decision, even though it more or less upheld the congressional laws.  But to this day, no one even knows who really wrote it. It is signed “per curiam” which the Justices usually use for brief and minor opinions. In Buckley v. Valeo, however, the label was used by the Court to signal a team effort, of sorts. William Brennan is generally regarded to have written much of Buckley, but Brennan’s biographers note that sections were also composed by Warren E. Burger, Potter Stewart, Lewis Powell, and William Rehnquist. Not surprisingly, in light of the multiple authors, the opinion is a product of confusing compromises. The central focus of the decision is to create a distinction between expenditures and contributions. The Court said that, under the First Amendment, Congress could not restrict campaign expenditures. Spending money was like speech itself, because “every means of communicating ideas in today’s mass society requires the expenditure of money.” That included printing handbills, renting halls, and buying ads on television. 

The 1974 supplemental campaign finance bill had set up a tightly controlled system for financing campaigns: the government would monitor and regulate both the inflows and the outflows of money. It is not clear that the proposal would have worked as intended, but at least it made holistic sense. Congress could essentially select a number for the over-all price of a congressional or Presidential campaign, and then force candidates to live within that number. 

Buckley ended that system before it even started. In the 1974 law, 

It is not clear that the proposal would have worked as intended, but at least it made holistic sense. Congress could essentially select a number for the over-all price of a congressional or Presidential campaign, and then force candida.0

tes to live within that number.  The court, however, in Buckley imposed a different one, of the Justices’ own creation. By the court declaring that contributions could be limited but expenditures could not, that distinction has been the central feature of the constitutional rules of campaign finance. 

But the  bottom line in  Buckley is a recognition that money spent was a manner of speech, and yet it makes an odd distinction between money spent being a right of the campaigner’s right of free speech but denied money donated as an unrestricted right of speech.

The Origination of Citizens United

Floyd Brown became famous in 1988. He was the political director of an independent campaign committee called Americans for Bush, which produced and broadcast a commercial featuring Willie Horton, a convicted murderer who received a weekend furlough in Massachusetts and then committed several grisly crimes. 

When the election was over, Americans for Bush had outlived its usefulness. But now with the  notoriety that came with the co–authorship of the Willie Horton ad, Brown founded a new organization–Citizens United. 

In forming Citizens United, Brown took on a partner named David Bossie, a recent dropout from the University of Maryland. Bossie had a passion for conservative politics and, like Brown, an entrepreneurial bent to make money for himself using political sponsorships. In 1992, Brown appointed Bossie his “chief researcher,” and Bossie focused narrowly on publicizing harsh critiques of the personal and financial affairs of Bill and Hillary Clinton. 

With the inauguration of George W. Bush, the public profile of Citizens United receded once again and Brown departed, leaving Bossie as president of the group.  Bossie searched for a new niche to distinguish Citizens United from the other conservative organizations in Washington. Bossie’s revelation came in 2004, when he first saw advertisements for Michael Moore’s movie “Fahrenheit 9/11.” 

Bossie recognized that the documentary was doing a kind of double duty. “Fahrenheit 9/11” and the television commercials promoting it were at once political salvos against the re-election of President Bush and a potential source of profit  that would appeal to Bossie’s conservative bent. He latched upon the idea he could achieve the same rewards by producing conservative documentaries. 

Bossie’s decade long obsession with the Clintons made  Hillary Clinton’s presidential ambitions in 2008  an irresistible subject. “Hillary: The Movie” was typical of the Citizens United oeuvre. It included news footage, weird music to impress a devilish inference to Clinton herself, and a series of interviews with dedicated and articulate partisans, like the sister of Pat Buchanan and Ann Coulter.

Originally, Bossie wanted “Hillary: The Movie” to come out in late 2007,  to tie it to the Presidential election in the way that Moore had pegged “Fahrenheit 9/11” to the previous race. A cable company offered to make “Hilary” available on video on demand. Bossie also engineered a small run of the movie in theaters, but his real priorities were television advertisements and video on demand offered the opportunity. 

Over the years, Bossie had become familiar with federal election law, so he decided he needed a lawyer, and hired James Bopp, Jr.  Bopp was raised in Terre Haute, Indiana, and in 1970 he graduated from Indiana University, where he headed the chapter of Young Americans for Freedom, the student group that propelled many Republican careers. Bopp wanted to argue that the McCain-Feingold ban on issue advertisements violated the First Amendment. But in 2003, in one of the last major opinions of the Rehnquist Court, the Justices had upheld most of the law against a challenge from Mitch McConnell, a dedicated foe of all campaign-finance reform. (The case was known as McConnell v. Federal Election Commission.)

Bopp  thought he could challenge a law that had just been upheld because McConnell v. FEC case was a challenge to McCain-Feingold “on its face”—that is, a claim that the law was going to be unconstitutional in all circumstances. A new case would challenge the law “as applied” . 

Bosse was not certain that approach would work, so he turned to Theodore Olson to take the case because of Bosse’s uncertainty about Bopp’s chances with the court. Olson was a titanic figure in conservative legal circles. Bossie first met him in the nineties, when Olson and his wife, Barbara, were outspoken fellow-critics of Bill Clinton. (Barbara Olson was killed on the plane that crashed into the Pentagon on September 11, 2001.) Ted Olson had argued and won Bush v. Gore, and was rewarded by President Bush with an appointment as Solicitor General. Olson had argued before the Supreme Court dozens of times, and he had a great deal of credibility with the Justices. He knew how to win at the court.

Olson, though conservative was not really an activist, but he was a successful  litigator for conservative causes and he focused on narrowing the issues for the Citizens United lawsuit, so that the Court would not have to take any dramatic steps in order to rule his way. He did not focus his challenge on the constitutionality of McCain-Feingold; he simply said, as he told the Justices at the oral argument, that the law did not apply to documentaries broadcast with video-on-demand technology, only to commercials. 

Olson’s argument as presented:

“The Buckley Court found this rationale “sufficiently important” to allow contribution limits but refused to extend that reasoning to expenditure limits, and the Court does not do so here. While a single Bellotti footnote purported to leave the question open this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not cause the electorate to lose faith in this democracy. Caperton v. A.T. Massey Coal Co.,In our view the statute cannot be saved by limiting the reach of … through this suggested interpretation. In addition to the costs and burdens of litigation, this result would require a calculation as to the number of people a particular communication is likely to reach, with an inaccurate estimate potentially subjecting the speaker to criminal sanctions.”

“This is especially true in the context of the First Amendment.  As the Government stated, this case “would require a remand” to apply a de minimis standard. Applying this standard would thus require case-by-case determinations… It is not judicial restraint to accept an unsound, narrow argument just so the Court can avoid another argument with broader implications. Indeed, a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling. Here, the lack of a valid basis for an alternative ruling requires full consideration of the continuing effect of the speech suppression upheld in Austin….The McConnell majority considered whether the statute was facially invalid. “An as-applied challenge was brought in Wisconsin Right to Life, Inc. v. Federal Election Comm'n, (2006) (per curiam), and the Court confirmed that the challenge could be maintained. Then, in WRTL, the controlling opinion of the Court not only entertained an as-applied challenge but also sustained it. Three Justices noted that they would continue to maintain the position that the record in McConnell demonstrated the invalidity of the Act on its face. (opinion of SCALIA, J.). 

“The controlling opinion in WRTL, which refrained from holding the statute invalid except as applied to the facts then before the Court, was a careful attempt to accept the essential elements of the Court's opinion in McConnell, while vindicating the First Amendment arguments made by the WRTL parties. opinion of ROBERTS, C.J.).

“As noted above, Citizens United's narrower arguments are not sustainable under a fair reading of the statute. In the exercise of its judicial responsibility, it is necessary then for the Court to consider the facial validity of § 441b. Any other course of decision would prolong the substantial, nationwide chilling effect caused by § 441b’s prohibitions on corporate expenditures.”

Then Antonin Scalia spoke up. More than anyone, Scalia was responsible for transforming the dynamics of oral arguments at the Supreme Court. When Scalia became a Justice, in 1986,  the Court sessions were often somnolent affairs, but his rapid-fire questioning spurred his colleagues to try to keep pace, and, as Roberts said, in a tribute to Scalia on his twenty-fifth anniversary as a Justice, “the place hasn’t been the same since.” Alternately witty and fierce, Scalia invariably made clear where he stood even before entertaining the arguments.

Scalia had long detested campaign-spending restrictions, frequently voting to invalidate such statutes as violations of the First Amendment. For this reason, it seemed, Scalia was disappointed by the limited nature of Olson’s claim.

“So you’re making a statutory argument now?” Scalia said.

“I’m making a—” Olson began.

“You’re saying this isn’t covered by it,” Scalia continued.

“That’s right,” Olson responded. All he was asking for was a ruling that the law did not prohibit this particular documentary by this nonprofit corporation during those thirty days. If the Justices had resolved the case as Olson had suggested, today Citizens United might well be forgotten—a narrow ruling on a remote aspect of campaign-finance law.

Instead, the oral arguments were about to take the case—and the law—in an entirely new direction.

When Malcolm Stewart, the Deputy Solicitor General, rose to offer his rebuttal, a single question changed the case, and perhaps American history.

For all that the Solicitor General serves as the public face of the office of government’s position on law, and is an important senior political appointee; the career employees act as its principal representatives to the Court. Only two of the twenty-two lawyers in the office are political appointees, so most move seamlessly from one Administration to the next. Such had been Stewart’s projection for over twenty years before being appointed to the Deputyship.

By tradition, the S.G. staff operates according to a different standard from that of the hired guns who generally appear before the Supreme Court. The Solicitor General’s lawyers press their arguments in a way that hews strictly to existing precedent. They don’t hide unfavorable facts from the Justices. They are supposed to be straight with the court. This is why, in many cases, even when the federal government is not a party, the Court issues what’s known as a C.V.S.G.—a call for the views of the Solicitor General. 

The lawyers in the S.G.’s office are not neutral, but they are, traditionally, more highly respected by the court, at least in principle, than many other advocates. They dress differently, too, wearing a morning coat, vest, and striped pants when they appear in the Supreme Court. (At least until Elena Kagan’s term as SG, when she attempted to moderate the dress code.)

Malcolm Stewart, the lawyer in the Solicitor General’s office who argued the Citizens United case, embodied the best of the office. A graduate of Princeton and then Yale Law School, he had clerked for Harry Blackmun in the 1989 term. He joined the Solicitor General’s office in 1993, and his career thrived through three Presidencies and more than forty oral arguments. He twice won a John Marshall Award, one of the highest honors in the department. Shortly before the Citizens United argument, Stewart had been named a Deputy Solicitor General, the highest rank for a career lawyer.

Stewart’s  performance in Citizens United however, was an unmitigated disaster.
Alito wanted to push Stewart down a slippery slope. If McCain-Feingold forbade the broadcast of “electronic communications” shortly before elections, and this was brought as  a case about movies and television commercial, Alito pontificated  “Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth? Could the law limit a corporation from providing the same thing in a book? Would the Constitution permit the restriction of all those as well?”

Stewart replied  “ Yes those could have been applied to additional media as well.”

If oral argument ever perked the ears of the Justices, it is obvious from what followed that that statement had done so. It was one thing for the government to regulate television commercials. That had been done for years. But a book? Could the government regulate the content of a book?

“That’s pretty incredible,” Alito responded. “You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”

“I’m not saying it could be banned,” Stewart replied, trying to recover. “I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its—”

Kennedy interrupted. Sensing vulnerability on the subject of books, he joined Alito’s assault.

“Well, suppose it were an advocacy organization that had a book,” Kennedy said. “Your position is that, under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the sixty- and thirty-day periods?”

Stewart’s answer was a reluctant, qualified yes.

Roberts, may be soft spoken, but he has instinct to quietly put the noose around the neck on arguments he doesn’t like with extreme hypotheticals. And in this case the  Chief Justice wanted to make Stewart’s position look as ridiculous as possible. Roberts continued on the subject of the government’s censorship of books, leading Stewart into a trap.

“If it has one name, one use of the candidate’s name, it would be covered, correct?” Roberts asked.

“That’s correct,” Stewart said.

“If it’s a five-hundred-page book, and at the end it says, ‘And so vote for X,’ the government could ban that?” Roberts asked.

“Well, if it says ‘vote for X,’ it would be express advocacy and it would be covered by the pre-existing Federal Election Campaign Act provisions,” Stewart continued, doubling down on his painfully awkward position.

Through artful questioning, Alito, Kennedy, and Roberts had turned a fairly obscure case about campaign-finance reform into a battle over government censorship. The trio of justices made Stewart—and thus the government—take an absurd position: that the government might have the right to criminalize the publication of a five-hundred-page book because of one line at the end. 

Still, the Justices’ questioning raised important issues. Based on the theory underlying McCain-Feingold, could Congress pass any law to ban a book? And was Stewart right to acknowledge that it could? 

Stewart was wrong. Congress could not ban a book. McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choices to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.

As for Stewart’s performance, his defenders pointed to the unique role of the Solicitor General. A private lawyer could have danced around the implications of the law and avoided making any concession, but Stewart had a special obligation to be straight with the Justices, even if the answers hurt his cause. Stewart’s critics—and there were many—said that he had no obligation to try to answer an absurdly far-fetched hypothetical involving the censorship of books. By doing so, according to this view, Stewart wasn’t being honest—he was being foolish. He should have asserted that the federal government had neither the obligation nor the right to stop the publication of a book.

The arguments against  the quality of Stewart’s  advocacy, really have no clear resolution. I mean the questions were beyond reasonable and clearly there was no book involved.  

The hypotheticals were designed to discredit the government’s position, not an attempt to understand it, and being bound by the limitations that the SG’s office can not expand itself beyond precedent, presenting him with the idea of a book instead of a film presented itself beyond the reach of his ability to respond.  Precedent had established congress could regulate campaign finance.  Moore’s movie was not really in question, because it was realized well before (over a year I believe) the thirty day period would kick in, and I’ve never  heard of congress trying to outlaw books, unless they were under what might be considered pornography.  There were certainly no attempts to prevent magazines from writing editorials within the thirty days, in fact they were explicitly exempted in all campaign finance reform bills.  

I think Stewart could have answered differently, but boxed in by the court’s own rulings—its precedents, that stated congress was capable of regulating the finances of the campaign and by McConnell stating that McCain-Feingold was within the scope, the SG had little alternative to suggest for itself whether or not a law could be fashioned to prevent 500 page books.  Tradition totally forbids the SG’s office from straying beyond precedents the court itself has established.  Since there were  no congressional efforts to ban the speech in magazines, pamphlets or books from political dialogue the court had never been presented with anything to establish a precedent.  All that Stewart was permitted to do was say if congress passed such a law the precedents currently established would have given them the ability to do so.  

Evidently, though, the gleeful court had opened the very pandora’s box they were desiring, to move against all campaign finance and overturn several precedents in one fell swoop.

 A private drama followed which in some ways defined Chief Justice Roberts to his colleagues. Roberts assigned the Citizens United opinion to himself, as he often would for very contentions decisions. Even though the oral argument had been dramatic, Olson had presented the case to the Court in a narrow way. According to the briefs in the case—and Olson’s argument—the main issue was whether the McCain-Feingold law applied to a documentary that would be presented on video on demand, by a nonprofit corporation. 

The liberals lost that argument: the vote at the conference was that the law did not apply to Citizens United, which was free to advertise and run its documentary as it saw fit. The liberals,nevertheless,  expected that Roberts’s opinion would say this much and no more.  At first, Roberts did write an opinion roughly along those lines, and Kennedy wrote a concurrence which said the Court should have gone much further. Kennedy’s opinion said the Court should declare McCain-Feingold’s restrictions unconstitutional, overturn earlier Supreme Court decisions, and gut all long-standing prohibitions on corporate giving. But after the Roberts and Kennedy drafts circulated, the conservative Justices began rallying to Kennedy’s more expansive resolution of the case. In light of this, Roberts withdrew 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 transformed Citizens United into a vehicle for rewriting decades of constitutional law in a case where the lawyer had not even raised those issues. Roberts’s approach to Citizens United conflicted with the 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 petition. 

Now Roberts was doing nearly the same thing to upset decades of settled expectations. As the senior Justice in the minority, John Paul Stevens assigned the main dissent to Souter, who was working on the opinion when he announced his departure, on April 30th. Souter wrote a dissent that aired some of the Court’s dirty laundry (and from which we have some knowledge of the internal fight, though it was not initially published.)  By definition, dissents challenge the legal conclusions of the majority, but Souter accused the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.

Roberts didn’t mind spirited disagreement on the merits of any case, but Souter’s attack—an extraordinary, bridge-burning farewell to the Court—could damage the Court’s credibility. So the Chief came up with a strategically ingenious maneuver. He would agree to withdraw Kennedy’s draft majority opinion and put Citizens United down for reargument, in the fall.

For the second argument, the Court would write new Questions Presented, which frame a case before argument, and there would be 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. In plain English, the Court’s order told the parties that the Justices were considering overruling two major decisions in modern campaign-finance law. Most important, the Court was weighing whether to overturn its endorsement of McCain-Feingold in the McConnell case of 2003. 

As every sophisticated observer of the Court knew, the Court did not ask whether cases should be reconsidered,  unless a majority of the Justices were already prepared to challenge the prevailing precedent.. 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. 

An early argument would also put a decision in place well before the 2010 elections. The second argument in Citizens United was set for September 9, 2009. 

The decisions of the nineteen-thirties, which rejected central aspects of Franklin Roosevelt’s New Deal, also showed how conservative Justices would overrule the democratically elected branches. It was only in the Warren Court era, that the popular backlash against the court would begin to assert itself.

Note:

much of this article has been cribbed from the following source:

https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2259&context=journal_articles