There were three other dissenters from the Bellotti decision — Justices Byron R. White, Thurgood Marshall and William J. Brennan Jr., whose signature on Justice White’s dissenting opinion is worth a brief digression. A First Amendment champion of his day, Justice Brennan originally accepted the assignment to write the majority opinion in the Bellotti case, overturning the prohibition. But he changed sides within weeks, persuaded that his original instincts about the case were wrong and, as he explained to his colleagues, concerned that striking down the Massachusetts law would “inevitably call into question” efforts to deter and detect corporate corruption.
Justice Brennan’s switch — to the position that liberals occupy today — is an interesting historical footnote that I don’t believe has been previously reported. (My source is a memo from Justice Brennan to the other justices, contained in the Potter Stewart papers in Yale’s Sterling Memorial Library.) But it’s the dissenting opinion of the Burger court’s most conservative member that most clearly illuminates the dangerous path the current conservative majority is pursuing.
I don’t recall seeing that detail in Justice Powell’s or Marshall’s papers, which I examined for my book, The Supreme Court and Election Law. Justice Stewart’s papers were not available when I wrote the book, and I have been anxious to see them.
But Justice Brennan’s switch in Bellotti is not all that surprising when one considers his earlier vacillation about contributions and spending limits in the Buckley case, which I describe in my article, The Untold Drafting History of Buckley v. Valeo. In the final version of the article, which appears in the Election Law Journal, I note how Justice Powell in his notes from the post-argument Buckley conference stated that Brennan stated that “selfgov[ernmen]t is arguably furthered” by the limits. “Justice Rehnquist expressly disagreedwith Justice Brennan’s view of the First Amendment. He added that “those who say this Act furthers 1st A[mendment] values[] argue an absurdity.”
Over their remaining years on the Court, both Rehnquist and Brennan switched positions on these questions.