Today’s Must-Read: Liptak Talks to Justice Stevens About Citizens United, McCutcheon

For one thing, in this column Justice Stevens confirms the rumors swirling for years that Justice Souter wrote the first draft of a Citizens United dissent.  (I called for its release in this Slate column.)

The draft dissent, which has not been made public, questioned the majority’s attempt to recast a modest case into a blockbuster that would overrule major precedents and allow unlimited campaign spending by corporations and unions.

The draft dissent caused the majority to pause, Justice Stevens said, thanks to “the strong expression of the feeling among the dissenters that procedurally the case was not in the proper posture to reach the issue that they ultimately decided.”

“I think it persuaded the majority that it would be better to have a re-argument so that they could not be accused of deciding something that had not been adequately argued,” he said. “And I think they were right to do that.”

For another thing, Justice Stevens opines on whether under his proposed Amendment dealing with Citizens United would cover corporate books and newspaper editorials:

I asked whether the amendment would allow the government to prohibit newspapers from spending money to publish editorials endorsing candidates. He stared at the text of his proposed amendment for a little while. “The ‘reasonable’ would apply there,” he said, “or might well be construed to apply there.”

Or perhaps not. His tentative answer called to mind an exchange at the first Citizens United argument, when a government lawyer told the court that Congress could in theory ban books urging the election of political candidates.

Justice Stevens said he would not go that far.

“Perhaps you could put a limit on the times of publication or something,” he said. “You certainly couldn’t totally prohibit writing a book.”

As I said yesterday in my Daily Beast review of Justice Stevens’ book, Justice Stevens Six Amendments does not favors for progressives. It lacks nuance and deep thought.

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