January 23, 2010

Chief Justice Roberts' Concurring Opinion in Citizens United: Two Mysteries

I have now had a chance to reread the Citizens United opinions after the initial media frenzy over the case has died down. I am sure I'll have much to say about this case going forward about:

* the constricting definitions of corruption (an issue first flagged by Heather),

* the unusual sarcasm in Justice Stevens opinion (at least unusual for Justice Stevens) (my favorites: "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" and, on the court citing separate solitary opinions of Justices in earlier cases: "First, those Justices were writing separately; which is to say, their position failed to command a majority. Prior to today, this was a fact we found significant in evaluating precedents."), and

* what Citizens United is likely to mean for a host of other campaign finance laws that are being challenged or that could be challenged.

I also want to write about Justice Stevens' insistence, even now, that the Austin rationale was not an equality rationale (or at least not best read as an equality rationale), but instead is an anti-rent-seeking rationale. (This is only the second Supreme Court opinion ever using that term.)

For now, though, I want to focus on Chief Justice Roberts' concurring opinion. I've already characterized the opinion as being written "apparently solely to defend himself (and Justice Alito, who signed it) against charges of judicial activism," a point reiterated by Adam Liptak. I have two questions: (1) why did the Chief not assign the majority opinion to himself; and (2) once he gave the opinion away to Justice Kennedy, why did he write an opinion that is likely to backfire in terms of his reputation?

On the first question, the Chief Justice, when he's in the majority, has the right to assign an opinion-drafting assignment to anyone, including himself. It is not unusual for a Chief to save the juiciest cases for himself. There was no question this was a case that piqued the interest of the Chief (given his questioning at both oral arguments), and a case that was likely to be one of the most important opinions of the Roberts Court to date. One reason to assign an opinion to another Justice is to keep that Justice in the majority. That would not be a reason to assign the opinion to Justice Kennedy in this case, because he, along with Justices Scalia and Thomas, were already on record as wanting Austin overruled. It was Justice Alito and the Chief who, after WRTL II, were the swing Justices. Nor is it likely that the Chief wrote an opinion that was originally a majority opinion, but lost that majority in the writing process. There is no daylight between the position of the Chief and the position of the other Justices in the majority on the Austin question.

The only thing I can think of (I am open to other theories) is that the Chief wanted to distance himself somewhat from the most high profile Roberts Court decision to date reversing a major precedent. He may have wanted to do so especially after seeing the explosion of public interest in the case when it was set for reargument, and upon realizing that this was a case that really could have been ducked. So I am thinking the Chief, who apparently cares about maintaining an umpire, minimalist reputation, thought that less heat would fall on him if he did not write the majority opinion.

If that's right (and maybe its not--I have no inside information), why would the Chief then write a separate concurrence to defend the majority (and himself) against charges of activism? My guess on this one is that felt compelled to write once he saw the Justice Stevens dissent. The first part of the dissent is particularly effective in pointing out the many ways that the Court could have sidestepped the question of overruling Austin in this case. I don't think the Justice Stevens dissent is effective overall, but this first part is: it tracks the many arguments I set out over the summer in my anti-avoidance piece about how the Court could easily get out of deciding the major constitutional question, and then adds a strong section on stare decisis. Indeed, given that my anti-avoidance piece contrasts CU with the ridiculous attempt at constitutional avoidance in NAMUDNO,I had great personal satisfaction when I first noticed the last sentence of footnote 16 of Justice Stevens dissent. Referring to the many statutory arguments that could have been used to side with Citizens United without reaching the constitutional issue, Justice Stevens wrote: "Each of the arguments made above is surely at least as strong as the statutory argument the Court accepted in last year's Voting Rights Act case, Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. ---- (2009)."

So the Chief Justice mounted his defense in a separate concurrence. But it appears he's miscalculated if he thinks that it is an effective response to Justice Stevens' dissent. Many conservatives and libertarians have defended the Court's decision to overturn Austin on First Amendment grounds. But I've seen very little defense of the Chief, or the Court, as a Court really compelled to decide this issue. On this point, Chief Justice Roberts' concurrence on this point and Justice Kennedy's majority opinion on this point remind me of the line in Bush v. Gore when the Court laments its "unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."

Posted by Rick Hasen at January 23, 2010 10:32 PM