The Big News in Jeff Toobin’s Must-Read New Yorker Piece on Citizens United: Justice Souter’s Unpublished Dissent

Jeff Toobin’s piece, a preview of his forthcoming book, The Oath, provides inside details on the Court’s workings related to Citizens United which I have not seen reported anywhere else (and some of which might be contested).  Most interesting to me is why the Court set the case for reargument on the question whether the Court should overrule the Court’s earlier precedent requiring corporations to fund election ads through PACs.

On June 29, 2009, the day the Court put off deciding Citizens United, I wrote the following in a Slate column:

If Roberts and Justice Alito were ready to overrule Austin, why not do it now? I can think of two possible reasons. They may not have wanted to take the plunge on Justice Souter’s last day on the court. He has been an ardent defender of these laws. Perhaps more to the point, Justice Alito, in two campaign-finance cases, has said that he would not consider revisiting old campaign-finance precedent until the issue was squarely before the court and briefed. In other words, Alito wants a full airing of the issues before taking such a momentous step.

If Toobin’s account is correct, my speculation was in the neighborhood but not quite right:

As the senior Justice in the minority, John Paul Stevens assigned the main dissent to Souter, who was working on the opinion when he announced his departure, on April 30th. Souter wrote a dissent that aired some of the Court’s dirty laundry. By definition, dissents challenge the legal conclusions of the majority, but Souter accused the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.

Roberts didn’t mind spirited disagreement on the merits of any case, but Souter’s attack—an extraordinary, bridge-burning farewell to the Court—could damage the Court’s credibility. So the Chief came up with a strategically ingenious maneuver. He would agree to withdraw Kennedy’s draft majority opinion and put Citizens United down for reargument, in the fall. For the second argument, the Court would write new Questions Presented, which frame a case before argument, and there would be no doubt about the stakes of the case. The proposal put the liberals in a box. They could no longer complain about being sandbagged, because the new Questions Presented would be unmistakably clear. But, as Roberts knew, the conservatives would go into the second argument already having five votes for the result they wanted. With no other choice (and no real hope of ever winning the case), the liberals agreed to the reargument.

On June 29, 2009, the last day of the term, the Court shocked the litigants—and the political world—by announcing, “The case is restored to the calendar for reargument.”

Of course, Justice Stevens accused the majority of doing the same thing—engineering the case to get the result it wanted.  But the criticism that the Court decided the issue without briefing was gone thanks to the reargument.

Perhaps one day in my lifetime some Justice’s papers (but not Justice Souter’s) will reveal Justice Souter’s draft dissent.


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