Wow. Jeffrey Toobin: How Chief Justice John Roberts orchestrated the Citizens United decision.

[BzaDem]

83. I think there are a few aspects of what happened that are surprising.

The first is that Roberts was willing to change his view (from "the statute applies" to "the statute doesn't apply&quot , 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).