Bench Memos

Jeffrey Toobin’s “Money Unlimited”—Part 1

The New Yorker’s Jeffrey Toobin has a long essay purporting to establish, as the essay’s subtitle puts it, “how Chief Justice John Roberts orchestrated the Citizens United [v. FEC] decision”—the January 2010 ruling that struck down a provision of the McCain-Feingold campaign-finance law that made it a felony for a corporation to broadcast “electioneering communications” within 30 days of a primary election and 60 days of a general election.

In this post, I will show that Toobin’s evidence doesn’t support his thesis. In the next post, I will address some of Toobin’s wild distortions about Citizens United, including this baseless libel:

So, as the Chief Justice chose how broadly to change the law in this area, the real question for him, it seems, was how much he wanted to help the Republican Party. Roberts’s choice was: a lot.

As Toobin elaborates his thesis, the result in Citizens United “[a]bove all … represented a triumph for Chief Justice Roberts,” who, “[e]ven without writing the [majority] opinion …, more than anyone, shaped what the Court did.” Toobin highlights, in particular, two actions that Roberts took:

First, after the initial oral argument in the spring of 2009, Roberts made the “strategically ingenious maneuver” to have the Court order briefing and reargument on a broader question.

Second, after the reargument, in “another brilliant strategic move,” Roberts assigned the majority opinion to Justice Kennedy. By so doing, “he obtained a far-reaching result without leaving his own fingerprints.” Had he written the majority opinion himself, Roberts, who “made much of his judicial modesty and his respect for precedent,” “would have been criticized for hypocrisy.”

I mean no disrespect to Chief Justice Roberts, whose intellect I deeply admire, to observe that there was nothing remotely “ingenious” or “brilliant” about either of these decisions. Indeed, the facts that Toobin lays out make these decisions rather obvious. And these same facts would better support the thesis that the ultimate result in Citizens United reflected the failure of Roberts’s effort to unite the Court around a much narrower ruling—and that it was instead Justice Kennedy who, “more than anyone, shaped what the Court did.” (I’m not embracing this alternative thesis; I’m simply pointing out that Toobin’s evidence better supports it.)

By Toobin’s own account, after the initial argument in the case, Roberts “assigned the Citizens United opinion to himself” and drafted a narrow opinion that would have held that the campaign-finance provision at issue did not apply to a documentary, presented on video on demand, by a nonprofit corporation. (I gather that the draft opinion would have held that such application was barred by the First Amendment, rather than simply not being within the scope of the provision, but Toobin’s account is vague on this elementary point.) But the Court wouldn’t unify around such a holding: the liberal justices rejected it, and “Kennedy wrote a concurrence which said the Court should have gone much further.” When the “conservative Justices began rallying to Kennedy’s more expansive resolution of the case,” Roberts “withdrew his own opinion and let Kennedy write for the majority.” In other words, by Toobin’s account Roberts lost the majority for the narrower approach that he had drafted, and Kennedy won the majority for his more expansive approach.

Toobin says that Justice Souter then “wrote a dissent that aired some of the Court’s dirty laundry” (whatever that means) and “accused the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.” Specifically, one gathers, Souter complained that the majority’s more expansive approach was deciding issues that hadn’t been briefed and argued. Toobin evidently didn’t gain access to Souter’s draft dissent (he doesn’t quote it at all), and his thirdhand account seems unreliable in one key respect: If Souter were responding to a majority opinion by Kennedy, why would he be directing accusations specifically against the Chief Justice (as Toobin alleges), rather than against Kennedy or the majority as a whole?

Toobin contends that Souter’s draft dissent amounted to an “extraordinary, bridge-burning farewell to the Court” that “could damage the Court’s credibility.” Whether or not that was true (again, I doubt that Toobin has actually read the draft dissent, and I also doubt that it was more vehement than Justice Stevens’s ultimate dissent), Souter’s complaint that the broader issues hadn’t adequately been briefed and argued obviously invited the Court’s decision to have further briefing and reargument. No stroke of genius was required on Roberts’s part.

As for Roberts’s “brilliant strategic move” of assigning the majority opinion to Kennedy after reargument: What could be more obvious? Again, by Toobin’s own account, Kennedy’s “more expansive resolution” had won the majority away from Roberts the first time around. Why would Roberts think of assigning the majority to anyone else?

It’s also silly of Toobin to contend that Roberts “obtained a far-reaching result without leaving his own fingerprints.” Toobin provides not an iota of evidence that Roberts preferred that far-reaching result to his own initial effort to unify the Court around a much narrower approach. Nor does he provide any reason to believe that Roberts was somehow manipulating Kennedy (in the manner, say, of Justice Brennan’s working behind the scenes on Justice Blackmun on Roe v. Wade). Further, Roberts did leave “his own fingerprints”—in the form of providing the decisive fifth vote for Kennedy’s opinion as well as in his extensive concurring opinion (which Toobin doesn’t mention, much less confront, even though—or because?—it refutes much of his substantive criticism).

Nor, contrary to what Toobin suggests, did Roberts’s “brilliant strategic move” enable him to escape being “criticized for hypocrisy.” For example, a mere four days after the Citizens United ruling issued, Jonathan Alter, in a Newsweek essay, claimed that the ruling was inconsistent with the Chief Justice’s confirmation testimony and complained that “instead of ruling narrowly, the Roberts Court—in a new standard for judicial hypocrisy—struck down the laws of 22 states and the federal government.” Similar criticisms have been commonplace.

Update: A reader calls to my attention a SCOTUSblog post by Tom Goldstein from yesterday evening that similarly concludes that “the facts reported by Toobin don’t seem to support his conclusions about the Chief Justice.”


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