Dear Walter, Emily, and Judge Posner,
First, Walter: I agree with you that the press was very hesitant to call Arizona any kind of a win for the White House this morning. Unless I am missing something, it was good news for Obama and a rough day for Jan Brewer. As is often the case, the first few headlines tend to slap back and forth at each other until everyone agrees about the scope of what just happened. I would love to hear your thoughts on why the chief justice joined the majority opinion—I assume the alternative was a tie which would have allowed the 9th Circuit decision to stand—but I am hearing at least some chatter suggesting that there were other factors at work here. Do tell. I dare not hazard a guess on your other point—the reason Justice Scalia’s upset. I’m going to go with the old res ipsa defense. He’s upset because states should be allowed to defend their borders. Tune in Thursday for more.
That said, there is an interesting thread connecting the immigration case and the life without parole case Emily mentions. As you say, Emily, Justices Kagan and Kennedy have shown a special solicitude for juveniles because they are “different” in all the ways that have become familiar after Roper and Graham, the cases establishing that young people are reckless, impulsive, and vulnerable to external pressure—all qualities Alito sees as terrifying rather than worthy of special protection. The interesting common theme today is that Justice Scalia is desperately angry at the Obama administration’s special solicitude for children in announcing his support for a stripped down DREAM Act. Obama was announcing a new policy toward young people brought to the United States illegally by their parents for at least some of the same reasons Kagan seeks special scrutiny for young people who commit homicides. Justice Scalia is horrified at the prospect, explaining in his dissent that this will squander limited immigration resources. “The husbanding of scarce enforcement resources can hardly be the justification for this, since those resources will be eaten up by the considerable administrative cost of conducting the nonenforcement program, which will require as many as 1.4 million background checks and biennial rulings on requests for dispensation.” I don’t want to make too much of the fact that both Alito and Scalia and—as you point out, Emily—the chief justice don’t think that special solicitude for young people, who don’t have as much control over their lives as adults, necessarily represents “evolution” in the right direction, but it’s an interesting confluence today to say the least.
Which brings us to campaign finance reform. I don’t imagine anyone is too terribly surprised that the Supreme Court summarily reversed the Montana Supreme Court’s ruling from last winter finding that if a state supreme court just holds its ears and hops up and down and yells loud enough, it can overrule the highest court in the land through pure wishful thinking. The Montana court called into very specific question Justice Kennedy’s famous claim in Citizens United that independent campaign expenditures “do not give rise to corruption or the appearance of corruption.” As the five justices behind the per curiam ruling rejecting that theory today see it, “The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See US Const., Art VI, cl. 2.” Not content to leave matters there, the majority tersely adds: “Montana's arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case."
So that’s that.
One of the most interesting lessons here is that the sense of lingering public outrage over Citizens United—deserved or not—influenced the court not one little bit on this issue. In fact, while the big news today was the Arizona immigration ruling, a lot of liberal organizations jumped on the Montana campaign finance decision as their top story. I think they believe this is an issue that will continue to gain traction in bipartisan ways.
Why? Polling shows that Americans still hate the result in Citizens United as much as ever. They connect that holding directly to what they see as the flood of big money in this election from donors like Sheldon Adelson, who has promised to contribute millions more to the Romney campaign. Not everyone in America hates Citizens United, but it sure has had the unanticipated effect of uniting American citizens against the court. That said, there’s public opinion and then there’s public opinion, and nobody truly expected the court to redo its landmark campaign finance case at the whim of Montana.
Prof. Eric J. Segall, who teaches at Georgia State University College of Law, recently published Supreme Myths: Why the Supreme Court is Not a Court and Its Justices are Not Judges. He explained to me today that the summary reversal of the Montana decision “shows that the court is going to stick to its guns on its questionable assertion that political expenditures do not lead to corruption concerns.” He added that all the polling in the world won’t change that. As he put it, “Contrary to its normal practice, the court is displaying complete indifference to public opinion which is overwhelmingly against Citizens United. The fact that the court would not even hear arguments that the unique situation in Montana might justify modifying the Citizens United rule reflects the conservative majority’s belief that it knows best about the relationships between and among money, speech, and politics, and does not care at all what the American people, or state governments, think.”
All of this probably explains Justice Stephen Breyer’s muted dissent from the decision. Not much point in fighting this battle anymore in-house. We will find out in the coming months whether today’s decision will make a difference in how important the composition of the court becomes as an election issue. I think it may, but I wonder if you do?