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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsWow. Jeffrey Toobin: How Chief Justice John Roberts orchestrated the Citizens United decision.
Originally, the Citizens United case was a boring case involving the interpretation of the text of a law. The only question was whether the campaign finance law on the books actually covered the documentary video in the case. It had little to do the Constitution (or whether corporations were people).
However, instead of deciding that question, the court issued a one sentence statement that ordered the case to be reargued. The new question was much broader: were these laws restricting corporate election spending Constitutional in the first place? (This was not a question properly raised by the Citizens United organization at the Supreme Court.) Yet the Supreme Court ignored this, and transformed the case into the mother of all election spending cases. What is known as "Citizens United" was the opinion that resulted from that re-argument.
Outside the 9 justices and their law clerks, I didn't think anyone else knew exactly what transpired behind the scenes that caused the re-argument order and the resulting outcome. But today, an article by Jeffrey Toobin sheds quite a bit of light on what happened:
http://www.newyorker.com/reporting/2012/05/21/120521fa_fact_toobin
A private drama followed which in some ways defined the new Chief Justice to his colleagues. Roberts assigned the Citizens United opinion to himself. 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 caseand Olsons argumentthe main issue was whether the McCain-Feingold law applied to a documentary, 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 expected that Robertss 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. Kennedys opinion said the Court should declare McCain-Feingolds restrictions unconstitutional, overturn an earlier Supreme Court decision from 1990, and gut long-standing prohibitions on corporate giving. But after the Roberts and Kennedy drafts circulated, the conservative Justices began rallying to Kennedys 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.
...
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 Courts dirty laundry. By definition, dissents challenge the legal conclusions of the majority, but Souter accused the Chief Justice of violating the Courts own procedures to engineer the result he wanted.
Roberts didnt mind spirited disagreement on the merits of any case, but Souters attackan extraordinary, bridge-burning farewell to the Courtcould damage the Courts credibility. So the Chief came up with a strategically ingenious maneuver. He would agree to withdraw Kennedys 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.
I'm amazed not just by what happened, but that Jeffrey Toobin found out about this. These kinds of internal court deliberations usually remain secret until decades after the retirement of the justices on the court at the time. (At that point, the deliberations are sometimes are revealed in the justices' personal papers.) Mere mortals like us generally never get to hear about the internal deliberations in modern cases; we just see the opinions.
The only people that could possibly know any of this are the justices, and their law clerks. But the law clerks are sworn to secrecy, and almost never break that promise. (The only remotely recent case where they did do so, to my knowledge, is Bush v. Gore.. And even then, the fact that the law clerks talked was incredibly controversial.)
I suppose a justice or former justice could have told this to Toobin. But that would probably be unprecedented. I wonder if we will ever know who provided Toobin with this glimpse of what went on behind the scenes. In any case, the whole article is a fascinating read about how Citizens United came to be.
malaise
(268,715 posts)AlbertCat
(17,505 posts)NOW!
It was obvious from day one he was doing just what he said during his confim hearing he wouldn't do.
CanonRay
(14,085 posts)We're screwed until the SOB has a heart attack.
freshwest
(53,661 posts)No way the Teabagger majority are going to impeach the guy who tried to flub Obama's oath and did this. Never happen, wake up Democrats.
The battle is set at the district level in every state. Thanks to the too good to vote crowd in 2010, this is what we're looking at until the next chance to vote the baggers out. Until we get them out, expect more of the same. I hope this OP energizes the base to do it!
Jake2413
(226 posts)myrna minx
(22,772 posts)I'm speechless.
Solomon
(12,310 posts)activism! Ha!!!!!
Reaching to take power away from us people. It's despicable.
H2O Man
(73,510 posts)for this. This OP is a great example of the very best of DU. I wish that I could recommend it 1,000 times; I am still happy to recommend it once.
It's stuff like this that keeps me here.
ellenfl
(8,660 posts)PA Democrat
(13,225 posts)in order to protect the reputation of Chief Justice Roberts.
I sincerely hope this gets wide play and puts some fear in Roberts that if he votes to overturn the Affordable Care Act he will prove once and for all that he he the corporate tool that we all know him to be.
BzaDem
(11,142 posts)Once the conservatives withdrew their opinions and ordered the case for reargument, there was nothing left for Souter to dissent from. By the time the case was reargued, Souter was no longer on the court.
PA Democrat
(13,225 posts)I wonder if his disgust with what the Court had become played a role in his decision to retire.
HiPointDem
(20,729 posts)PA Democrat
(13,225 posts)unpublished opinion. Souter was apparently very unhappy with the Court and was said to have "aired some dirty laundry" in the dissenting opinion.
It could have been any number of people who knew about the contents of that unpublished opinion.
tallahasseedem
(6,716 posts)Thank you for posting, DUers are the best!
KoKo
(84,711 posts)UTUSN
(70,649 posts)crazylikafox
(2,752 posts)A big eye opener for me is Kennedy's role in expanding the decision to one much broader than originally intended. Although he has always been a conservative, he was considered to be a more moderate, often swing vote. If he's now to the right of Roberts, I really fear for our democracy.
BzaDem
(11,142 posts)Citizens United overruled two cases: one in 1990, and one in 2003. Kennedy was on the court in both cases, and he dissented in both. He also at other times (before Citizens United) called for their overruling, and in other cases said that he believes even direct candidate contribution limits are unconstitutional. He is about as absolutist on this issue as one can be (save Justice Thomas), and has always been.
So Kennedy's vote here was not very surprising (based on his past opinions); I would have been shocked if he didn't vote the way he did. The vote to uphold unlimited corporate spending was preordained as soon as Alito was sworn in; the only question was of when this would happen.
But the actions Kennedy and Roberts took (to turn this run-of-the-mill case into a gigantic Constitutional showdown) are very surprising. The new information Toobin reveals in this article makes is more surprising still.
LiberalFighter
(50,788 posts)He isn't running for anything but can still make life difficult for him.
Yavin4
(35,421 posts)And THAT boys and girls is why, above all else, you have to vote for a Democrat for president.
Simply put, , the SCOTUS will take away your freedom. End of story.
but Alito's appointment to the court could have and should have been obstructed/prevented on every level, but our feckless and in some cases co-opted Democratic Senators joined ranks with the 1% who trotted out Alito and Roberts in the first place.
truebrit71
(20,805 posts)...I think this also signals that "obamacare" is toast in their hands...
tcaudilllg
(1,553 posts)longship
(40,416 posts)This is indeed an exemplar of the best of DU. Well done Bzadem!
OKNancy
(41,832 posts)he openly criticized the court in his state of the union speech. If he did, he probably couldn't contain his anger.
crunch60
(1,412 posts)Surya Gayatri
(15,445 posts)excellent, albeit shocking read.
Roberts and his court will be harshly judged by history.
This travesty of a ruling must be overturned through legislation. Democracy cannot prevail in such a climate.
zeemike
(18,998 posts)He who controls the past controls the future. He who controls the present controls the past.
― George Orwell, 1984
tcaudilllg
(1,553 posts)What about ours?
AndyTiedye
(23,500 posts)JHB
(37,157 posts)Or is it more like the "non-conservative" side?
For that matter, is there a "conservative" side anymore, or just a RW radical side?
tinrobot
(10,887 posts)What bothers me is that the Supreme court is the ultimate decider of our constitution, yet does this decision making in complete secrecy.
So much for transparent democracy.
elleng
(130,740 posts)tinrobot
(10,887 posts)I would like to know more about how the justices make their decisions, however.
elleng
(130,740 posts)will try to think of some, but anything by Linda Greenhouse is pretty good. She's got a new one out:
http://www.oup.com/us/catalog/general/subject/Politics/AmericanPolitics/?view=usa&ci=9780199754540
Dont call me Shirley
(10,998 posts)constitutionality. They took that power unto themselves in the 1803 Marbry vs Madison. The ultimate "deciders" of constitutionality are the voters.
zeemike
(18,998 posts)And it is used over and over again to get what they want...and the left never seems to be able to counter it.
K&R
lamp_shade
(14,816 posts)olegramps
(8,200 posts)The right wing extremists have a death hold for years to come over any legislation that challenges their rigid conservatism and determination to destroy their opponents. People need to wake up to the fact the the Supreme Court has been hijacked by the Opus Dei cult who are determined to create a virtual theocracy.
leftyohiolib
(5,917 posts)A Supreme Court Justice may be impeached by the House of Representatives and removed from office if convicted in a Senate trial, but only for the same types of offenses that would trigger impeachment proceedings for any other government official under Articles I and II of the Constitution.
Article III, Section 1 states that judges of Article III courts shall hold their offices "during good behavior." "The phrase "good behavior" has been interpreted by the courts to equate to the same level of seriousness 'high crimes and misdemeanors" encompasses.
In addition, any federal judge may prosecuted in the criminal courts for criminal activity. If found guilty of a crime in a federal district court, the justice would face the same type of sentencing any other criminal defendant would. The district court could not remove him/her from the Bench. However, any justice found guilty in the criminal courts of any felony would certainly be impeached and, if found guilty, removed from office.
source: http://wiki.answers.com/Q/Can_a_US_Supreme_Court_justice_be_impeached_and_removed_from_office
olegramps
(8,200 posts)That is why I continue to back the same call for an admendment to the contstitution. It appears to be the only solution to the abuse by the court that is taking place.
panader0
(25,816 posts)cindyperry2010
(846 posts)supreme court justice who would have thought
Old and In the Way
(37,540 posts)The Republican Party's agenda was making it uncompetitive with citizen funding. They needed new sources of funding - corporations and RW billionaires. The interests that this Party represents. The Republican majority on SCOTUS gave their Party this gift decision which is working to undermine democracy in our country.
Baitball Blogger
(46,684 posts)adigal
(7,581 posts)Can anyone point me in the right direction for this? Thanks,
Never mind, I just read it. Gets me sick.
pacalo
(24,721 posts)grasswire
(50,130 posts)?
adigal
(7,581 posts)Very good article.
Tatiana
(14,167 posts)Of course, when you know everything is 5-4 in your favor, you can do whatever the hell you want -- nevermind the intent of Congress or the Constitution.
mn9driver
(4,419 posts)He has developed relationships with people over many years and I find him quite credible. His prediction that the ACA will be struck down is almost certainly accurate. It will be a 5-4 decision, it will not be based on law but on ideology, it will ignore Stare Decisis, and will contribute to the collapse of the health care system. Congress will be unable to craft any legislation that could be relied on to get by the conservatives on the court, since they are now making their own rules based on what they believe instead of based on the Law.
Our constitutional system is just about done, folks.
adigal
(7,581 posts)and one may not go back. Will he lose the health care he has under me? He is 20 and my other son is 21.
mn9driver
(4,419 posts)If the ACA is struck down, my 21 year old will lose his insurance with me. He can't afford to buy a decent policy on his own, and I can't afford to buy one for him. Plus, he has a pre-existing condition that will be impossible to insure on the individual market.
I don't think it matters very much whether the SC strikes down the whole law, or just the mandate, except in terms of timing. If the whole thing is struck down, our kids will lose coverage at the next coverage interval. If just the mandate is struck down, it will take a little longer, but the whole law will eventually fall apart.
adigal
(7,581 posts)Thank you for voting for a political party that will take away your grandson's insurance.
BzaDem
(11,142 posts)information like this.
As for his prediction, it very well could be accurate. But I don't think he has any inside information telling him this. He came out with his prediction immediately after oral argument, based on the tenor of the argument. (And he wasn't the only one; the argument did not look good.) In particular, his prediction came out even before the justices cast their votes, and before he could have talked to anyone. He walked right out of the court on argument day to make the prediction.
If someone told him the outcome of the case, that would be a gigantic breach in security. No outcome has been leaked before the announcement in several decades (and the last time it happened was one day before the opinion announcement, in different circumstances). If this outcome in particular were leaked, there are massive dangers relating to insider trading. (This decision has the potential of reshaping a huge part of our economy.) Even given these revelations (a few years after the events in Citizens United occurred), I would be absolutely shocked if anyone other than the justices and law clerks knew the outcome in the case.
TBF
(32,013 posts)and to whichever clerk (and/or justice ... though that would surprise me) leaked this. K&R
jwirr
(39,215 posts)bluesbassman
(19,361 posts)Justice, fairness, and what's actually best for the country doesn't even enter their minds.
SunSeeker
(51,516 posts)Jefferson is spinning in his grave.
steve2470
(37,457 posts)madamesilverspurs
(15,799 posts)Stevens was just warming up. His dissent was ninety pages, the longest of his career. He questioned every premise of Kennedys opinion, starting with its contempt for stare decisis, the rule of precedent. He went on to refute Kennedys 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 Kennedys 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.
lamp_shade
(14,816 posts)xxqqqzme
(14,887 posts)opinion never sees the light of day and to 'protect' the court's reputation, robert's lobbies for a re-argument. Knowing, in advance, what the decision will be, he insures the court's reputation will be cheapened beyond repair rather than a brief news item. Those 5 should all be wearing 24K gold, diamond encrusted dollar signs around their necks. Imagine the visual impact against the black robes.
newspeak
(4,847 posts)Of course, the court's reputation was cheapened when two SC judges did not recuse themselves for conflict of interest in Bush V Gore. Some of us knew that they already were bought and paid for hacks, most not even worthy of respect.
benld74
(9,901 posts)Dawson Leery
(19,348 posts)Liberal justices do NOT believe that corporations = humans.
Zorra
(27,670 posts)Groomed and selected by the 1% to protect the plutarchy and destroy democracy.
Roberts is a primary reason that the 1% made sure that the 2000 election could be stolen, and got stolen in fact.
They needed their boy in there.
It would be the one of the best things that could happen to everyone on the planet, and the planet itself, if he had to leave the bench right this minute, for some reason.
ellie50
(31 posts)This is but one reason the SCOTUS is so poorly regarded these days
As the U.S. Supreme Court begins its 2011-2012 term, Americans approval of the institution is now 46%, a drop of 5 percentage points in the last year and 15 points in the last two years.
Yavin4
(35,421 posts)Give them this example.
tclambert
(11,084 posts)Anyone concur?
grasswire
(50,130 posts)Need to keep an archive, each of us, of the most critical documents regarding the election 2000 and Citizens United. Keep it for your descendants.
Dont call me Shirley
(10,998 posts)Swede Atlanta
(3,596 posts)As an attorney this just makes my jaw drop.
One of the hallmark differences between our legal system and that of civil law countries such as France, Italy, etc. are that the judges to not inject themselves into the legal cases before them.
By that I mean, a judge is never supposed to raise an issue or an argument that one side or the other could or should have made. The are to simply consider the legal arguments of both sides against the facts and render a judgment.
Here, the Court asked a legal question neither of the sides placed before them for consideration.
If this account is true in my view Roberts and those who may have colluded with him are susceptible of impeachment.
jaysunb
(11,856 posts)If only we were in the age of committment to the rule of law.
onenote
(42,598 posts)Maybe I'm just cynical. Or maybe its just experience. Justices push arguments that narrow or broaden the scope of a case all the time. Indeed, the eye-opening lesson for me in the first Supreme Court case I worked on (I've worked on three) was learning from experienced Supreme Court attorneys that I needed to throw out my experience and expectations of how a court will approach an issue. The SCOTUS often decides not to decide issues that were argued to it and, while not as common, its not unheard of for a Justice to argue that the court should address issues not viewed as essential to the decision by the attorneys.
The case was reargued, which would seem to undermine any claim of misconduct. Rearguments -- often expressly sought to buy time to get a different result in the case -- have a long history. Indeed, two of the most famous cases of my lifetime -- Brown v. Board of Education and Roe v. Wade were both reargued before they were decided.
The result in Citizens was wrong, imo, and contrary to established precedent. But the way the court got to that result is actually not without precedent.
BzaDem
(11,142 posts)The first is that Roberts was willing to change his view (from "the statute applies" to "the statute doesn't apply" , so he could rule on a Constitutional question that was not properly before the court (and overrule decades of precedent).
The second is that whatever procedures were used to do this were so unusual and/or shocking that Souter was about to take an unprecedented step of spilling the beans of an internal procedural issue in his dissent. That really is kind of a "nuclear option." It brings to mind judge Boggs' "procedural appendix" to the 6th circuit opinion in Grutter vs. Bollinger (the affirmative action case eventually heard by the Supreme Court). Judge Boggs basically accused the liberal lion on the court (judge Boyce Martin) of bad faith, and manipulating the procedures to achieve a desired result. The result of this was that Martin and Boggs (and another judge who joined Boggs) were apparently not on speaking terms.
If Souter was about to do anything remotely similar, whatever Roberts was about to do was probably quite bad. According to Toobin, it is only to prevent this from becoming public that Roberts ordered the case reargued (to a date after Souter would no longer be on the court).
WillyT
(72,631 posts)Odin2005
(53,521 posts)And yes, he is a traitor. The Corporations are at war with the American People, that makes Roberts a traitor.
onenote
(42,598 posts)Read the Constitution. I can't wait for Roberts to be gone, but claiming he's a traitor only reveals the ignorance of the one making the claim regarding what constitutes treason in the United States.
nradisic
(1,362 posts)I'm in. Impeach John Roberts. He is not fit to be on the Supreme Court, but then again many of us knew that during his confirmation proceedings.
cr8tvlde
(1,185 posts)on anything that might be "controversial" ... consider 8 years of Citizen's United appointees. What a merry bunch of 1%ers that will be.
aquart
(69,014 posts)aquart
(69,014 posts)Sure he'll burn in Hell. But we won't know what's happening down there.
MrMickeysMom
(20,453 posts)That ruling and what Roberts has been doing with this Court is nothing short of activist.
It's wrong, they know it's wrong and history will prove that this was the last horrid bunch of activist judges. I hope they are shorted of their careers soon.
Prism
(5,815 posts)And really quite chilling.
a2liberal
(1,524 posts)ck4829
(35,038 posts)McCamy Taylor
(19,240 posts)And the case the Bush administration brought in order to allow the SCOTUS to issue its Citizens United ruling was so irregular ----for Bush (when did Bush ever try to enforce campaign spending limits?)--that it was obvious that the Bush DOJ and the SCOTUS planned this all out together.
Uncle Joe
(58,298 posts)Thanks for the thread, BzaDem.