erik lundegaard


Friday August 20, 2010

John Paul Stevens Quote: Citizens United

On September 9th last year, Stevens engaged in a classic version of advocacy-by-interrogation during the argument of Citizens United v. Federal Election Commission...

The Court had first heard arguments in the case in March, 2009, and the questions raised then were mostly narrow ones... But, in June, the Court issued an unsigned order asking for the case to be reargued on new terms. Such an order, which requires a majority, had never been issued since Roberts became Chief Justice, in 2005, and only rarely in earlier years. The Court now told the lawyers to address much broader issues about the relationship of corporations to the First Amendment..l.

For a century, Congress and the Supreme Court had been restricting the participation of corporations, and individuals, in elections, mostly through limits on campaign contributions. The Court had come to see campaign spending as a form of speech, but one that clearly could be regulated, especially if the speaker was a business. The notion that corporations did not have the same free-speech rights as human beings had been practically a given of constitutional law for decades, and the 1990 and 2003 decisions (both joined by Stevens) reflected that consensus. Now the Court seemed open to what had been radical notions—that corporations had essentially the same rights as individuals, and could spend potentially unlimited amounts of money in elections.

Stevens never uses his questions to filibuster, and his first query was simple. “Does the First Amendment permit any distinction between corporate speakers and individual speakers?” he asked Theodore B. Olson, the lawyer for Citizens United and a Solicitor General in the second Bush Administration.

Olson hedged, saying, “I am not—I’m not aware of a case that just—”

“I am not asking you that,” Stevens persisted. “I meant in your view does it permit that distinction?”

Finally, Olson said, “I would not rule that out, Justice Stevens. I mean, there may be.”...

His strategizing was for naught. In a decision announced on January 21st, Kennedy, joined by the four conservatives, wrote a breathtakingly broad opinion, overturning the 1990 decision and much of the 2003 decision, and establishing, for the first time, that corporations have rights to free speech comparable to those of individuals...

Stevens’s ninety-page dissenting opinion in Citizens United (the longest of his career) was joined in full by Ginsburg, Breyer, and Sotomayor, and was a slashing attack on the majority, laden with sarcastic asides. “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech,” he wrote...

Stevens charged that the way the majority had handled the case was even worse than the legal outcome. “There were principled, narrower paths that a Court that was serious about judicial restraint could have taken,” he wrote. “Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” He added, referring to the Court, “The path it has taken to reach its outcome will, I fear, do damage to this institution.”

—from Jeffrey Toobin's article “After Stevens” in the March 22nd issue of The New Yorker

Posted at 06:36 AM on Friday August 20, 2010 in category Law