May 14, 2012: Law Professors Unsure of Some of Author’s Claims Regarding Chief Justice’s Machinations in ‘Citizens United’ Decision

Law professors Thomas Goldstein, the publisher of the well-regarded Supreme Court blog “SCOTUSBlog,” and Jonathan Adler, a contributor to the renowned “Volokh Conspiracy” legal blog, write of their reactions to the article published by Jeffrey Toobin in the New Yorker alleging that Chief Justice John Roberts managed the Citizens United case into becoming a vehicle for rewriting and gutting the nation’s campaign finance laws (see May 14, 2012). Goldstein describes himself as “naturally inclined towards that reading of the history” and an opponent of the Citizens United decision, but takes issue with some of Toobin’s claims. Adler is less inclined to accept Toobin’s interpretations.
Doubt that Roberts Orchestrated Decision - Both Goldstein and Adler write that Toobin’s facts do not lead to his conclusion that Roberts orchestrated the process to allow the Court to overturn the bulk of the nation’s campaign finance legal structure (see March 27, 1990, March 27, 2002 and December 10, 2003); Adler goes one step further and says Toobin’s article “contains plenty of subtle (and not-so-subtle) spin in service of Toobin’s broader narrative of an out-of-control conservative court.” Had Roberts orchestrated the outcome from the beginning, Goldstein writes, it does not follow that Roberts would have written an original opinion much more narrowly focused than the final, transformative opinion written by Justice Anthony Kennedy (see March 15, 2009). Adler echoes this conclusion. Adler also notes that even from the outset, none of the liberal Justices were willing to rule directly against the Citizens United claim, “in no small part because the statutory argument was so weak.” Goldstein does not make this claim. Goldstein also believes that at the outset, the Court’s five conservatives—Kennedy, Roberts, Samuel Alito, Antonin Scalia, and Clarence Thomas—may not have been as solid in their support for Kennedy’s more sweeping opinion as Toobin claims.
Doubts about 'Censorship' Claim - Adler notes that Toobin’s interpretation of the “censorship” argument as stumbled into by the government’s lead legal counsel during the first argument is incorrect, saying that the government’s claim that books and magazines could be censored under a strict interpretation of the McCain-Feingold legislation is accurate. He acknowledges that during the second round of arguments, the government backed away from the claim, but not convincingly and not completely. Adler gives more credence to that legal argument than does either Toobin or Goldstein.
Doubts that Roberts Alone Decided to Reargue Case - Both authors claim that Toobin erred in claiming Roberts alone decided that the Citizens United case should be reargued (see June 29, 2009); Goldstein writes, “even if he did, that decision does not seem like an effort to decide Citizens United as broadly as possible as quickly as possible.” Goldstein says that Roberts’s decision to assign the final opinion to Kennedy was not as clever a tactical move as Toobin writes: “Kennedy had already written an opinion deciding the case on that basis that had the support of several members of the majority. It would have been fairly insulting for Roberts to take the assignment away.” He also notes that in June 2010, the Court refused to hear a lawsuit by the Republican National Committee (RNC) that would, if accepted, terminated Congressional restrictions on corporate donations to political parties. Only three of the five conservatives—Kennedy, Scalia, and Thomas—voted to hear argument. “If the Chief Justice were actually leading the charge for revisiting campaign finance law, he presumably would not have voted to affirm,” Goldstein writes.
Some Agreement that Majority Erred - Goldstein agrees with Toobin that the conservative majority may have erred in deciding Citizens United on First Amendment grounds (Adler supports the decision), but he does not agree with Toobin’s choice to single Roberts out for special attention: “[T]hat is a criticism that is just as applicable to the entire majority, as opposed to an indication of maneuvering by him. It also ignores that the alternative may have been no clear holding whatsoever—with dueling members of the majority articulating inconsistent rationales that left the law in flux.” Adler disagrees entirely with Toobin’s characterization of the Citizens United case as “judicial activism,” a characterization that Goldstein does not entirely accept, either.
Speculation about Sources - Adler speculates on Toobin’s sources, musing that to have such detail on the decision-making process would almost certainly indicate that Toobin’s sources are sitting Justices, clerks for said Justices, or others inside the Court itself, and writes: “We don’t know the identities of Toobin’s sources, and some of his claims are difficult to check. His story may reflect how some justices or clerks saw the case, but there may well be another side, and we won’t know until such time as the relevant court documents are released. I also cannot help but wonder whether some of Toobin’s sources, such as former Supreme Court clerks, may have violated their own ethical obligations in disclosing portions of the Court’s internal deliberations. Even if Toobin’s sources were sitting or former [J]ustices, there is something unseemly about the selective disclosure of what went on inside the Court on such a recent case.”
Conclusions - Goldstein concludes by writing that in the future, with a liberal perhaps replacing Kennedy on the Court, if an opportunity occurs for the Court’s new liberal majority to overturn Citizens United in its entirety, “[w]ill progressives really contend that the new and more liberal majority should leave that decision standing? I don’t think so. They will want the Court to get the decision ‘right’.” Regardless of his criticisms, he writes, Toobin’s book is a “must read,” as is the article. Adler is more measured in his praise, writing: “In any event, the article is still worth reading—as I am sure Toobin’s book will be as well. Some portions will just go down better with a healthy dose of salt.” [Tom Goldstein, 5/14/2012; Jonathan H. Adler, 5/14/2012]