The Roberts Court: The Struggle for the Constitution (38 page)

The government knew that the reargument order was bad news and believed it had been triggered by the book-banning admission. As its lawyers headed into the reargument, they had two challenges: responding to the book-banning concern and defending
Austin
. They felt that if they could take the book concern off the table, they might be able to steer the Court toward upholding the McCain-Feingold electioneering provision.
Austin
was more troublesome. The conservatives on the Court clearly were hostile to the
Austin
decision. It was a Thurgood Marshall opinion. And even though
Austin
was reaffirmed in 2003 by the Court in
McConnell v. FEC
, the Court’s membership had changed since then. Should Kagan rely on
Austin
or try a different rationale for upholding the ban on corporate spending?

“What we were trying to do was count to five [justices] and realizing we probably weren’t going to get to five, but to the extent there was any chance at all, we wanted to take that chance,” said a former lawyer in the office at the time. “But we were not under any illusions.”

Olson, first at the podium, opened his argument with a direct attack on
Austin
, which, he said, stood for a “radical concept” that would authorize the government to ban books and signs. Ginsburg soon triggered a series of questions about whether Olson believed there was any difference in the First Amendment rights of individuals and corporations for purposes of campaign finance. “A corporation, after all, is not
endowed by its creator with inalienable rights,” said Ginsburg. Olson replied that the Court has said “over and over again” that corporations are persons entitled to First Amendment protection. But what about megacorporations, she asked, and megacorporations with foreign investors? Olson said the First Amendment applies and Congress would have to identify some compelling government interest to justify any spending restrictions.

Sotomayor told Olson that although he was making “impassioned” arguments about why current campaign finance regulations and decisions were bad, “there is no record that I am reviewing that actually goes into the very question that you’re arguing exists, which is a patchwork of regulatory and jurisprudential guidelines that are so unclear.” But he rejoined that it was the government’s burden to produce a record justifying its speech restrictions and it had not done so.

Olson had coordinated earlier with Floyd Abrams on how to spend his time most effectively. When Abrams next took his turn, he urged the justices not to rule narrowly as the case was first presented but to decide the constitutional questions now instead of waiting for the next case like
Citizens United
and the next case and the next case, all of which would have some special wrinkle setting them apart from the last one. Ginsburg and Stevens sparred with him on respect for the
Austin
and
McConnell
decisions and noted that their rationales for limiting corporate expenditures went back a half century or longer and should not be so easily discarded.

Sotomayor told Abrams that state and federal lawmakers had worked hard for the last one hundred years to find the right balance between the First Amendment and protection of the election system. A broad ruling, she said, might cut off that future democratic process. And then, in a comment that surprised the audience, she suggested she might be rethinking the basic underlying premise of protection for corporations. She told Abrams, “What you are suggesting is that the courts, who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court’s
error to start with, not
Austin
or
McConnell
, but the fact that the Court imbued a creature of State law with human characteristics.”

Olson, seated at the counsel’s table, was startled by Sotomayor’s comment: “I thought surely they’re not going to say corporations are not protected under the First Amendment or the Constitution generally. I thought that was pretty interesting that she would say that.” He was pleased with Abrams’s argument and responses. “Floyd Abrams is a First Amendment icon and yet he is a liberal,” said Olson. “For him to be there and to say, ‘Wait a minute; this is about fundamental free speech,’ I can say that but I’m not a First Amendment icon. He added a lot of credibility to our side.”

Kagan, in a confident yet conversational style, began her argument by saying that the Court for one hundred years had left in place limits on contributions and then limits on expenditures, which were specifically approved in
Austin
. Roberts soon cut to the heart of the government’s defense of
Austin
and asked Kagan if she was relying on
Austin
’s justification for the ban on corporate spending: “the corrosive and distorting effects of immense aggregations of wealth.”

Kagan said the government’s position was similar and that it was relying on the distortion of the electoral process that occurs when corporations use the money of shareholders who may not agree with the political policies that the corporation is pursuing with their money. She also cited the concern with quid pro quo corruption. Roberts pointedly told her that the government was grounding
Austin
on interests that the Court had never recognized as justifying restrictions on independent expenditures.

Justice Alito jumped into the crossfire to note that more than half the states permit corporate expenditures in elections and, he asked, “Have they all been overwhelmed by corruption?” Kagan fought back, saying the experience of half the states cannot be more important than the hundred-year-old judgment of Congress that these expenditures would corrupt federal elections.

Justice Scalia’s hostility toward Congress suddenly surfaced as he
interjected that Congress has a self-interest and he doubted that a body of incumbents could draw restrictions that did not favor incumbents. Kagan, bluntly but politely, told Scalia that he was wrong. “In fact, corporate and union money go overwhelmingly to incumbents,” she rejoined. “This may be the single most self-denying thing that Congress has ever done.”

The book-banning question did not come until the very end of Kagan’s argument, when Ginsburg asked for the government’s position. Kagan responded, “The government’s answer has changed,” and laughter erupted in the courtroom. Although part of the law extended to full-length books, she said, there would be a good-as-applied challenge to any attempt to apply the corporate treasury ban to books. She added that the FEC had never applied it to books and a book had never been an issue for sixty years. Roberts leaned forward with sudden intensity, saying, “We don’t put our First Amendment rights in the hands of FEC bureaucrats.”

Seth Waxman stood up after Kagan and stressed one point: if the Court wanted to reexamine the basis for the rulings in
Austin
and
McConnell
, it should do it in a case where the issue had been squarely presented and litigated in the lower court so the justices had a complete record on which to make a decision, just as it had in
McConnell
in 2003 and in other cases. The Court did not have such a record in
Citizens United
.

Olson took five minutes for rebuttal, and then the argument, which had grown from eighty minutes to ninety-four minutes, ended.

After Roberts announced that the case was over, the justices left the bench and the Supreme Court police began to release the audience row by row. As Bossie moved to leave his aisle seat, he met, directly across the aisle from him, McCain and Feingold. They did not know Bossie, but he recognized the two senators and he overheard McCain say to Feingold, “Russ, I don’t know how we win this thing.” Feingold answered, “This is an uphill battle.”

Neither they nor anyone else in the courtroom that morning, except for the nine justices, knew that the battle had been lost months earlier.

The
Citizens United
reargument on that September morning closed out the Roberts Court’s fourth term. Although a final decision would not come until the new term, whose start was just weeks away, the case would be officially a part of the October 2008–09 term.

The term that was ending looked something akin to the childhood game of “Simon Says.” There had been a giant step to the right with
Citizens United
, which almost everyone expected after the reargument would lift restrictions on corporate and union spending in elections. There had been two small steps back from the brink of major rulings in two race cases. And there had been small but significant steps to the right in three other areas: criminal justice, age discrimination, and the environment.

In that latter category of smaller steps to the right, Roberts led a 5–4 majority of his conservative colleagues in a decision that relaxed the so-called exclusionary rule that requires courts to exclude evidence obtained from an illegal search or arrest. In
Herring v. United States
, police made an arrest based on erroneous information supplied by a police clerk. Roberts and the majority, which had been gradually narrowing the application of the exclusionary rule, said, for the first time, that the rule did not apply “when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements.” The decision was potentially a broader application of the “good faith” exception to the exclusionary rule.

And in
Montejo v. Louisiana
, Alito led the conservative majority which, in overruling a twenty-three-year-old decision, pared back a criminal suspect’s right to a lawyer before police interrogation. But there was a notable liberal victory in
Graham v. Florida
, when a 6–3 majority ruled that the Constitution forbade a sentence of life in prison without parole for juveniles who committed crimes other than murder. Roberts agreed with the outcome but wrote separately to say that he disagreed with a categorical ban on the sentence and, instead, said that judges should take a case-by-case look at whether the sentence should be applied. Scalia, Thomas, and Alito dissented.

Thomas led the 5–4 conservative majority in
Gross v. FBL Financial Services
where, even though no party in the case had raised the issue or sought Thomas’s outcome, the majority aggressively moved to impose a higher burden of proof on people bringing job-related age discrimination claims than is required for proving race and gender discrimination under Title VII.

And it was considered the worst term ever for environmental advocates, who lost all five of their cases in the term even though they had prevailed in the lower courts.

After four years of the Roberts Court, Justice Kennedy—as he had since O’Connor’s departure—continued to hold the key to outcomes in cases that divided the justices along ideological lines; but he was much more closely aligned with the conservative wing than she had been in her later years on the Court.

The Roberts Court also had shown a willingness to reach out for issues that were not in dispute in the cases brought to them and to move the law in a more conservative direction in decisions such as
Gross v. FBL Financial Services
(greater burden of proof on people bringing job-related age discrimination cases),
Ashcroft v. Iqbal
(a higher bar on people seeking to bring cases in federal courts), and
Montejo v. Louisiana
(overruling a 1985 precedent on an accused person’s waiver of the right to counsel during police interrogations).

And despite his commitment to narrow rulings and a modest role for the Court in public policy debates, Roberts had delivered two major “jolts” to the legal system in the Seattle-Louisville school cases and the District of Columbia gun case. The biggest, and perhaps most unpopular jolt since the 2000
Bush v. Gore
decision, was still to come.

•  •  •

As September eased into October and the start of a new term, Citizens United’s Bossie and Boos once again waited and waited. They planned their schedules around the days on which the Court was sitting because when their decision did come down, they had to be ready to respond
to media requests for reaction. Olson was in California, where he, along with David Boies, who had represented Al Gore in
Bush v. Gore
, was leading the legal challenge to California’s ban on same-sex marriage—Proposition 8—a case that would reach the Court in 2012. As for Kagan and her office, well, this was a new term with cases for the government to pursue.

Guns and the Second Amendment were back on the docket in
McDonald v. City of Chicago
, undoubtedly the blockbuster of the term, regardless of its outcome. Alan Gura, the aggressive young lawyer who won the District of Columbia gun case just one year earlier, had filed the
McDonald
case on the day of that landmark victory. He was now asking the justices to go a step further and apply the Second Amendment’s individual right guarantee to all states and local jurisdictions.

The Roberts Court also was continuing its fascination with the First Amendment. Although nearly every term for years had held a healthy number of First Amendment cases, the justices would decide a remarkable five, in addition to
Citizens United
, in its October 2009–10 term. The five cases implicated speech, association, and religious rights protected by the amendment.

Anthony Kennedy is the closest to an absolutist on the First Amendment since Justice Hugo Black, appointed by President Franklin Roosevelt, served on the Court from 1937 to 1971. Black believed the Court should enforce constitutional rights literally, especially the freedom of speech in the First Amendment. On that amendment’s command that Congress “shall make no law . . . abridging the freedom of speech,” Black thundered, “No law means no law!” The First Amendment in his view was the cornerstone of liberty and freedom of speech was its heart.

Kennedy, however, is no absolutist or literalist; in fact, he has always said he has no particular judicial philosophy, unlike his colleagues, Scalia and Breyer. Instead, his personal views of what liberty and democracy mean, and, in particular, his respect for individual dignity have animated his most important rulings since taking his seat on the Court in 1988.