Did the Roberts Court misjudge the public mood on campaign finance reform?
Posted Monday, Jan. 25, 2010, at 2:09 PM
One of the defining features of the John Roberts Court is how rarely it's accused of being tone-deaf. With a handful of exceptions, the conservative majority on the court has chipped, sanded, and whittled away at the law without need of a drop cloth. With a toolbox that includes judicial minimalism and constitutional avoidance, a penchant for overruling old cases without explicitly saying so, and an uncanny sense of just how much activism the public will tolerate, the Roberts Court has done a remarkable job of conforming its behavior to the prevailing public mood, resisting the impulse to go too far.
That's what makes last week's bombshell of a decision in Citizens United v. FEC so riveting: The timing was terrible. How could a conservative majority that was unwilling to strike down the Voting Rights Act last June, or do away with the disparate impact test for affirmative-action claims, strike a death blow for the unfettered rights of corporate America during a recession? After a financial meltdown and the firestorm about bankers' bonuses? Did the five justices in the majority really think the mood of the American public was right for a ruling that could allow massive energy and pharmaceutical companies to spend millions on campaign attack ads?
Gallup polls show that while most Americans, 57 percent, consider corporate campaign donations a protected form of free speech, 76 percent nevertheless believe government should limit the amount corporations—and everyone else, for that matter—can give. A poll released last week by Public Strategies reflects that American trust in big corporations is slowly on the rise since last year but still down around 43 percent. So why did this court—which has been uniquely sensitive to public opinion—strike down the electioneering provisions of the 2002 campaign finance law, rather than waiting just a bit longer? In a year or so, public outrage at Wall Street and big business might have cooled off, and John Paul Stevens might have departed the court, taking his resolute views about money and corporate speech with him.
Let's chalk it up to momentum. Trains are large and heavy, and once they get going, it's hard, if not impossible, to stop them. This one had a head of steam up, making it tough to pull on the brakes.
Start with Anthony Kennedy, who has been itching to overrule the 1990 decision in Austin v. Michigan Chamber of Commerce (holding that corporations could be barred from using profits to support or oppose candidates) since, well, Austin. He and Justice Antonin Scalia dissented back then, joined by Sandra Day O'Connor. Along the way they lost O'Connor and picked up Clarence Thomas. The question marks were Roberts and Alito, who had balked two years earlier at going all the way. Then came what seemed the magic moment.
Recall that when it first agreed to hear Citizens United—the case about Hillary: The Movie—it was 2008. The economy hadn't yet tanked. The banks hadn't failed. The housing bubble hadn't burst. Moreover, a split among intellectuals on the left no doubt gave the court's conservatives the impression that this was an auspicious moment to forge ahead. A quick shuffle through the amicus briefs for Citizens United shows that while many on the left deplore the infusion of big money into political campaigns, there was also a hard-core free speech contingent. It includes the ACLU and Floyd Abrams. Left against left. With the liberals divided, conservatives on the court apparently felt ready to seize the moment.
Besides, the justices had already launched a constitutional trial balloon and drawn relatively little fire. The provision of the Bipartisan Campaign Reform Act struck down this week had been all but gutted in a 2007 case, Wisconsin Right to Life. In that case, the chief justice and Justice Alito had declined to overturn the ban on corporate campaign expenditures outright and refused to overrule Austin. Nothing terrible happened. Now that Kennedy had his five votes, you can see why he didn't want to turn back.
Also, there was the pressure exerted by rising expectations. When the justices suggested last spring that Austin was on the line, the number of amicus briefs filed in this case jumped from 12 to 42. With all those cheers behind him, how could the engineer hesitate to send the train hurtling down the track?
Consider, too, that Anthony Kennedy is actually the one tone-deaf guy on the usually pitch-perfect Roberts Court. He thrives on being the swing justice, a man of history. But unlike his predecessor in that role, Sandra Day O'Connor, his chest cavity does not include a built-in barometer of the public mood. Kennedy's nothing if not self-assured; he has a sense of rectitude that inclines him to plunge forward once he's made up his mind. For him, glittering generalities like "[s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people" are what it takes to decide cases. Citizens United sat at the junction of issues about which Kennedy cares desperately: judicial supremacy and the First Amendment. And you could see how he might get confused about the likely reception to the ruling: The media usually praise him when he stands up for free speech.
All this bad timing brings to mind another one of history's great Supreme Court train wrecks, Miranda v. Arizona. You know that one—the Warren Court's ruling in 1966 requiring police officers to read suspects their rights. Until Miranda, the Warren Court's adventures in protecting suspects' and defendants' rights had gone down with surprising ease: Race was implicated in it all, and people were generally supportive of the court's efforts to make the criminal justice system more fair. But by the time a 5-4 court handed down Miranda, things had changed. Crime rates had soared. Fear of the violent streets had replaced a fading Communist threat. Members of Congress were treated to a chart tying each and every jump in the crime rate to a new Warren Court decision coddling criminals. Nixon ran against the Warren Court and won. Soon it was the Burger Court.
The Miranda disaster needn't have happened. People knew that the potential—and actual—coercion in police station backrooms was a problem. The American Law Institute already had under consideration a model statute to address problems with police interrogation. Well-respected judges literally took to the stump, begging the court to wait. But Earl Warren, that self-confident former prosecutor and governor, knew better. Or he thought he did. No one was going to steal the limelight from Warren's court. And apparently not Kennedy's, either.
There are a good many self-conscious signals in the Citizens United opinion that the engineer knew deep down that he might be speeding down the track too swiftly. Fully 15 of Kennedy's 60-page opus are spent explaining why the court simply could not turn down any of the alternate, less dramatic routes offered up by the parties and amici. The chief justice and Alito added many, similar words in a concurrence, just to emphasize why all this had to happen right now. Maybe that signals that at the last minute, some of the justices realized there was an unexpected bend in the road. They hurtled ahead anyway.
Barry Friedman is the Jacob D. Fuchsberg Professor of Law at New York University School of Law and the author of The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. He is currently writing a book on the Fourth Amendment.
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Justice Anthony Kennedy by Mandel Ngan/AFP/Getty Images.