FIRST ONE @ ONE FIRST

CJ Roberts’s Concurrence

Posted in Case Reports by Mike Sacks on January 21, 2010

I just finished reading Chief Justice Roberts’s concurring opinion, joined by Justice Alito, in Citizens United.  It is a fascinating mix of ideological slime surrounded by institutional silver-lining.

The concurrence begins quite notably by insisting that if the majority could, it would have decided on narrower, statutory grounds, invoking NAMUDNO:

The majority’s step-by-step analysis accords with our standard practice of avoiding broad constitutional questions except when necessary to decide the case before us. The majority begins by addressing—and quite properly rejecting—Citizens United’s statutory claim that 2 U. S. C. §441b does not actually cover its production and distribution of Hillary: The Movie (hereinafter Hillary). If there were a valid basis for deciding this statutory claim in Citizens United’s favor (and thereby avoiding constitu- tional adjudication), it would be proper to do so. Indeed, that is precisely the approach the Court took just last Term in Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. ___ (2009), when eight Members of the Court agreed to decide the case on statutory grounds instead of reaching the appellant’s broader argument that the Voting Rights Act is unconstitutional. [...]

But there is something stinky in the Chief Justice’s subsequent analysis.  If the entire Court agreed that Citizens United’s statutory claims failed in the case’s original incarnation, then the Court could–and perhaps should–have issued an opinion last June in favor of the FEC and been done with this Hillary: The Movie business.  Instead, the Court scheduled a rehearing and asked the parties to brief and argue the constitutionality of Austin and McConnell.  And this is where the Chief Justice’s argument emits a peculiarly mendacious odor:

This is the first case in which we have been asked to overrule Austin, and thus it is also the first in which we have had reason to consider how much weight to give stare decisis in assessing its continued validity. [...] [emphasis added]

The Court was not asked the overrule Austin.  The Court asked Citizens United on reargument to ask the Court to overrule Austin.  I must confess that I’ve always had problems wrapping my head around the term, “begging the question,” in the abstract.  But now that I’ve seen an actual question very much begged, I don’t think its less concrete use will trip me up anymore.

Hoping no one will call him out on his recasting judicial prerogative to reach the constitutional question as an unavoidable judicial necessity, the Chief Justice goes on to give a very cogent and compelling defense of when a majority should depart from stare decisis.

[W]e must balance the importance of having constitutional questions decided against the importance of having them decided right. [...]

Because continued adherence to Austin threatens to subvert the “principled and intelligible” development of our First Amendment jurisprudence, Vasquez, 474 U. S., at 265, I support the Court’s determination to overrule that decision.

Roberts’s argument for the several pages between those lines will be of much use when the Court decides whether to overturn Slaughter-House in McDonald later this term.  But in McDonald, the petitioners actually presented the Court with the question, which is how our Supreme Court has historically done its business.  Yet after hearing Citizens United the first time around last term, the Court’s conservative bloc had not the patience to wait for an analogous case to come along that asked the five justices, in a manner consistent with the Court’s history and tradition, what they wanted to hear.

Indeed, only through the Court’s question-begging was the Chief Justice able to wax magnanimous in his concurrence’s conclusion:

We have had two rounds of briefing in this case, two oral arguments, and 54 amicus briefs to help us carry out our obligation to decide the necessary constitutional questions according to law. We have also had the benefit of a comprehensive dissent that has helped ensure that the Court has considered all the relevant issues. This careful consideration convinces me that Congress violates the First Amendment when it decrees that some speakers may not engage in political speech at election time, when it matters most.

The Chief Justice insults our intelligence by pretending that the second round of briefing, the reargument, and the nearly fifty-four amici did anything to aid this ready-made 5-4 decision.   Yet he knows that given the surrounding political climate, this case may have been a full liquidation of the Court’s scarce political capital.  Roberts seems to have written this opinion not only to justify such an expense, but also to defend the Court’s institutional legitimacy against what he knows will be the inevitable attacks against the Court’s naked activism.

For this reason, he referred to NAMUDNO to show that he will remain vigilant to guide the Court, when he “can,” towards similar holdings.  For this reason, he wrote at length on the Court’s sometime-need to depart from stare decisis.  For this reason, he expresses appreciation–even if it is less than sincere in the present case–for the comprehensive and persuasive nature of the parties’ briefs and his colleagues’ opinions.

As such, I stand by my assertion that the Supreme Court, under the leadership of Chief Justice Roberts, forms its docket and decide its cases with an eye towards public opinion and the surrounding political climate.  The Chief Justice’s concurrence signals that politically aggravating, if not counter-majoritarian, cases such as Citizens United will be rare.  That assurance, of course, doesn’t make today’s decision any less polarizing, dramatic, or outrageously results-oriented.  But it does signal the emergence of a more mature, responsive Roberts Court.

—-

UPDATE: Thanks to “Fact-checker” below for pointing out that Citizens United did, in fact, ask the Court to overrule Austin in the first merits brief.  However, the brief’s official questions presented to the Court do not explicitly ask for such an overruling and when the brief does ask for it, it is buried in the middle of Citizens United’s narrow, as-applied argument that “BCRA § 203 IS UNCONSTITUTIONAL AS TO THE DISTRIBUTION OF UNITED’S DOCUMENTARY FILM VIDEO ON DEMAND.”  This, of course, does not change the fact that Citizens United did raise the point in its brief, but the Court itself commanded rehearing on the constitutional issue.

UPDATE II: Related to the previous update, in her 1/29/10 NYT Opinionator column, Linda Greenhouse writes:

“In this case, we are asked to reconsider Austin,” Justice Anthony M. Kennedy wrote in the second paragraph of his 57-page majority opinion in Citizens United. Well, not exactly. It was the court itself that put Austin in play, with its surprise order on the final day of the last term. Rather than issue the expected decision, the justices told the lawyers to reargue the case and to address whether the court should overrule both Austin and the relevant portion of the 2003 decision that upheld the McCain-Feingold corporate speech limitations.

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One Response

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  1. Fact-checker said, on January 24, 2010 at 4:29 pm

    Actually, Citizens did ask the Court to overrule Austin in their first merits brief. http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-205_Appellant.pdf at 30 (“Austin was wrongly decided and should be overruled”).

    That first brief (unlike the second) did not explicitly challenge McConnell. You’ll note that the majority opinion says “we are asked to reconsider Austin and, *in effect,* McConnell.” (emphasis added).


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