Bench Memos

Jeffrey Toobin’s “Money Unlimited”—Part 2

As I discussed in my Part 1 post, the evidence that Jeffrey Toobin presents in his New Yorker essay on the Citizens United ruling doesn’t actually support his core thesis. So I suppose that it shouldn’t be surprising that Toobin makes lots of other reckless and unsubstantiated assertions.

Perhaps the most egregious is this passage:

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.

The trusting reader would have no idea that the Citizens United majority adopted the very holding that the ACLU urged; that the case’s holding applies equally to unions and corporations; that the First Amendment theory that the Obama administration advocated would have had radical consequences; that even then-Solicitor General Elena Kagan recognized that the 1990 precedent of Austin v. Michigan Chamber of Commerce that the majority overruled was an outlier; and that not even Linda Greenhouse defends the actual position taken by Justice Stevens and the other dissenters. (These points also cut against Toobin’s claim that the Citizens United ruling “reflects the aggressive conservative judicial activism of the Roberts Court.”)

Toobin offers not an iota of evidence for his scurrilous charge that Chief Justice Roberts made a “choice” “to help the Republican Party.” (Perhaps we are to assume that the ACLU was similarly motivated?) Nor does he bother even to try to make the case that the Citizens United ruling in fact operates, or might reasonably have been expected to operate, to that end. (In one paragraph, Toobin claims that the “implications” of Citizens United became “quickly apparent” in a subsequent D.C. Circuit ruling that individuals “could make unlimited contributions to so-called Super PACs,” and he cites the role of such individual contributions in the Republican presidential primaries and in Republican Super PAC fundraising, but this does not speak meaningfully to the overall comparative effect, on Democratic and Republican prospects, of liberating corporations and unions from the challenged restriction.)

More broadly, leftist ideology aside, there is no reason to believe that the “moneyed interests” whose campaign spending Toobin complains that the Roberts Court is protecting are predominantly Republican. As the Weekly Standard’s Andrew Ferguson observes:

That the “rich and powerful” are identical to conservatives and Republicans … is a hoary idea dear to many Democrats and essential to their self-image as the opponents of privilege. It persists even though many of the plushest and most powerful institutions of American life are in the hands of liberal Democrats: public and private universities, government bureaucracies, nonprofit foundations, movie studios, television networks, museums, newspapers and magazines, Silicon Valley… Among the fabled “1 percent,” according to Gallup, the number of self-identified Republicans is only slightly greater than the number of Democrats. As Christopher Caldwell has pointed out in these pages, political donations from 19 of the 20 richest ZIP codes in the United States go overwhelmingly to Democrats, by a ratio of four to one or more. Democrats are the party of what Democrats used to call the superrich. Only Democrats seem not to realize this.

A final note: According to Tom Goldstein’s post, Toobin’s essay is an excerpt from his forthcoming book titled The Oath: The Obama White House vs. The Supreme Court. If this excerpt is representative of the book, I suspect that I will have roughly the same opinion of The Oath as I had of Toobin’s 2007 book, The Nine: Inside the Secret World of the Supreme Court (which I addressed in a 5part series of posts).


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