ROBERTS, J Ch Justice

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WIKI

...end of his clerkship with Rehnquist, Roberts worked to gain admission to the bar, studying with Michael W. McConnell, a law clerk of Justice William Brennan. After the 1980 presidential election, he resolved to work under the new Reagan administration.^[38] Rehnquist recommended him to Ken Starr, who was chief of staff to attorney general William French Smith, and Roberts was named a special assistant to the attorney general. After being admitted to the District of Columbia bar and arriving to the Department of Justice in August 1981, he helped Sandra Day O'Connor prepare for her confirmation hearings.^[39][e]

President Ronald Reagan greeting Roberts in the Oval Office while Roberts was serving as an associate White House Counsel (1983)

As an assistant to the attorney general, Roberts concentrated on the scope of the Voting Rights Act of 1965, especially Section 2 and Section 5, both of which Roberts and other Reagan lawyers believed to have unnecessarily intruded on state regulations.^[41]

He wrote to Friendly, "this is an exciting time to be at the Justice Department, when so much that has been taken for granted for so long is being seriously reconsidered."^[42] Among those he worked with were William Bradford Reynolds in the Civil Rights Division, former classmate Richard Lazarus, J. Harvie Wilkinson III, Theodore Olson, and fellow special assistant Carolyn Kuhl.^[43]

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j toobin

money-unlimited

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The New Yorker

Annals of Law

Money Unlimited

How Chief Justice John Roberts orchestrated the Citizens United decision.

By Jeffrey Toobin

May 14, 2012

By having the case reargued, Roberts put the liberals in a box and transformed the decision’s impact on political campaigns.

When Citizens United v. Federal Election Commission was first argued before the Supreme Court, on March 24, 2009, it seemed like a case of modest importance. The issue before the Justices was a narrow one. The McCain-Feingold campaign-finance law prohibited corporations from running television commercials for or against Presidential candidates for thirty days before primaries. During that period, Citizens United, a nonprofit corporation, had wanted to run a documentary, as a cable video on demand, called “Hillary: The Movie,” which was critical of Hillary Clinton. The F.E.C. had prohibited the broadcast under McCain-Feingold, and Citizens United had challenged the decision. There did not seem to be a lot riding on the outcome. After all, how many nonprofits wanted to run documentaries about Presidential candidates, using relatively obscure technologies, just before elections?

Chief Justice John G. Roberts, Jr., summoned Theodore B. Olson, the lawyer for Citizens United, to the podium. Roberts’s voice bears a flat-vowelled trace of his origins, in Indiana. Unlike his predecessor, William Rehnquist, Roberts rarely shows irritation or frustration on the bench. A well-mannered Midwesterner, he invariably lets one of his colleagues ask the first questions.

:{:{That day, it was David Souter, who was just a few weeks away from announcing his departure from the Court. In keeping with his distaste for Washington, Souter seemed almost to cultivate his New Hampshire accent during his two decades on the Court. In response to Souter’s questions, Olson made a key point about how he thought the case should be resolved.}:

In his view, the prohibitions in McCain-Feingold applied only to television commercials, not to ninety-minute documentaries. “This sort of communication was not something that Congress intended to prohibit,” Olson said. This view made the case even more straightforward. Olson’s argument indicated that there was no need for the Court to declare any part of the law unconstitutional, or even to address the First Amendment implications of the case. Olson simply sought a judgment that McCain-Feingold did not apply to documentaries shown through video on demand.}:

The Justices settled into their usual positions. The diminutive Ruth Bader Ginsburg was barely visible above the bench. Stephen Breyer was twitchy, his expressions changing based on whether or not he agreed with the lawyer’s answers. As ever, Clarence Thomas was silent. (He was in year three of his now six-year streak of not asking questions.)

Then Antonin Scalia spoke up. More than anyone, Scalia was responsible for transforming the dynamics of oral arguments at the Supreme Court. When Scalia became a Justice, in 1986, the Court sessions were often somnolent affairs, but his rapid-fire questioning spurred his colleagues to try to keep pace, and, as Roberts said, in a tribute to Scalia on his twenty-fifth anniversary as a Justice, “the place hasn’t been the same since.” Alternately witty and fierce, Scalia invariably made clear where he stood.

He had long detested campaign-spending restrictions, frequently voting to invalidate such statutes as violations of the First Amendment. For this reason, it seemed, Scalia was disappointed by the limited nature of Olson’s claim.

“So you’re making a statutory argument now?” Scalia said.

“I’m making a—” Olson began.

“You’re saying this isn’t covered by it,” Scalia continued.

That’s right, Olson responded. All he was asking for was a ruling that the law did not prohibit this particular documentary by this nonprofit corporation during those thirty days. If the Justices had resolved the case as Olson had suggested, today Citizens United might well be forgotten—a narrow ruling on a remote aspect of campaign-finance law.

Instead, the oral arguments were about to take the case—and the law—in an entirely new direction.

Supreme Court cases become landmarks in different ways. Lawrence v. Texas, the 2003 gay-rights decision striking down anti-sodomy laws, began with a trivial contretemps in an apartment building just outside Houston. On the other hand, the importance of the constitutional challenge to the Affordable Care Act, the signature domestic achievement of the Obama Presidency, was apparent as soon as it was filed. (A decision is expected in June.) The result in Bush v. Gore was important, but the reasoning turned out to be perishable; the decision has not been cited again by the Justices.

In one sense, the story of the Citizens United case goes back more than a hundred years. It begins in the Gilded Age, when the Supreme Court barred most attempts by the government to ameliorate the harsh effects of market forces. In that era, the Court said, for the first time, that corporations, like people, have constitutional rights. The Progressive Era, which followed, saw the development of activist government and the first major efforts to limit the impact of money in politics. Since then, the sides in the continuing battle have remained more or less the same: progressives (or liberals) vs. conservatives, Democrats vs. Republicans, regulators vs. libertarians. One side has favored government rules to limit the influence of the moneyed in political campaigns; the other has supported a freer market, allowing individuals and corporations to contribute as they see fit. Citizens United marked another round in this contest.

:{In a different way, though, Citizens United is a distinctive product of the Roberts Court. The decision followed a lengthy and bitter behind-the-scenes struggle among the Justices that produced both secret unpublished opinions and a rare reargument of a case. The case, too, reflects the aggressive conservative judicial activism of the Roberts Court. It was once liberals who were associated with using the courts to overturn the work of the democratically elected branches of government, but the current Court has matched contempt for Congress with a disdain for many of the Court’s own precedents.

When the Court announced its final ruling on Citizens United, on January 21, 2010, the vote was five to four and the majority opinion was written by Anthony Kennedy. Above all, though, the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.}:

Floyd Brown had worked around the fringes of the conservative movement for years before he became famous, in 1988. He was the political director of an independent campaign committee called Americans for Bush, which produced and broadcast a commercial featuring Willie Horton, a convicted murderer who received a weekend furlough in Massachusetts and then committed several grisly crimes. When the election was over, Americans for Bush had outlived its usefulness. So Brown embraced the notoriety that came with the co–authorship of the Willie Horton ad, and founded a new organization. He called it Citizens United.

Brown acquired a sidekick, a recent dropout from the University of Maryland named David Bossie. Bossie also had a passion for conservative politics and, like Brown, an entrepreneurial bent. In 1992, Brown appointed Bossie his “chief researcher,” and they narrowed their focus to publicizing harsh critiques of the personal and financial affairs of Bill and Hillary Clinton. Eight years later, with the inauguration of George W. Bush, the public profile of Citizens United receded. Bossie, who had become president of the group in 2000, thought that it needed a niche to distinguish it from the other conservative organizations in Washington. Bossie’s revelation came in 2004, when he first saw advertisements for Michael Moore’s movie “Fahrenheit 9/11.” Bossie recognized that the documentary was doing a kind of double duty. “Fahrenheit 9/11” and the television commercials promoting it were at once political salvos against the reëlection of President Bush and a potential source of profit.

Bossie decided to transform Citizens United into a movie studio, which would produce conservative documentaries. In the period leading up to the 2008 election, the Presidential candidacy of Hillary Clinton was an irresistible subject, given Bossie’s long history of opposing her and her husband. “Hillary: The Movie” was typical of the Citizens United oeuvre. It included news footage, spooky music, and a series of interviews with dedicated and articulate partisans. (“She’s driven by the power, she’s driven to get the power, that is the driving force in her life,” Bay Buchanan, the activist and the sister of Pat Buchanan, said. “She’s deceitful, she’ll make up any story, lie about anything, as long as it serves her purposes of the moment, and the American people are going to catch on to it,” Dick Morris, the estranged former Clinton Administration adviser, said. “ ‘Liar’ is a good one,” Ann Coulter said.)

Bossie wanted “Hillary: The Movie” to come out in late 2007, to tie it to the Presidential election in the way that Moore had pegged “Fahrenheit 9/11” to the previous race. A cable company offered, at a cost of $1.2 million to Citizens United, to make “Hillary” available for free to viewers, on video on demand. Bossie also engineered a small run of the movie in theatres, but his real priorities were television advertisements and video on demand. Over the years, Bossie had become familiar with federal election law, so he decided he needed a lawyer, and hired James Bopp, Jr.

Bopp was raised in Terre Haute, Indiana, and in 1970 he graduated from Indiana University, where he headed the chapter of Young Americans for Freedom, the student group that propelled many Republican careers. After graduating from the University of Florida law school, he returned to Indiana to practice law in 1973, the year of Roe v. Wade. He decided to join the fledgling anti-abortion movement, and was hired as the general counsel to the Indiana chapter of the National Right to Life Committee. In 1978, Bopp became the general counsel to the full National Right to Life Committee.

In 1980, the group issued a series of “voter guides” before Election Day. Some have credited the guides with helping to create the landslide that put Ronald Reagan in the White House and twelve new Republicans in the Senate. They were barely concealed works of advocacy, and the F.E.C. later tried to ban them. Bopp won a First Amendment challenge to the prohibition, and began working actively to challenge campaign-finance restrictions as well as abortion rights.

In 2002, Congress passed the Bipartisan Campaign Reform Act, usually called the McCain-Feingold law, after its original sponsors. One of the primary targets of the new law was the increasingly meaningless distinction between candidate advertisements and “issue” advertisements. For years, individuals, corporations, and labor unions had spent millions on ads that denounced candidates but technically avoided the specific language that turned a commercial into a “campaign” ad. McCain-Feingold sought to address this problem by prohibiting corporate and union funding of broadcast ads mentioning a candidate within thirty days of a primary or a caucus or within sixty days of a general election.

The McCain-Feingold law prompted the right-to-life group in Wisconsin to go to Bopp with a problem. The state had two Democratic senators, Russell Feingold and Herb Kohl, who supported abortion rights. In the run-up to the election of 2004, when Feingold was on the ballot, the right-to-life group wanted to run radio and television ads that addressed his record of opposing Bush’s judicial nominees. The ads were artfully designed to challenge Feingold without specifically discouraging a vote for him. In that way, they looked like “issue” ads, but because they ran before an election they were prohibited by the McCain-Feingold law.

Bopp wanted to argue that the McCain-Feingold ban on issue advertisements violated the First Amendment. But in 2003, in one of the last major opinions of the Rehnquist Court, the Justices had upheld most of the law against a constitutional challenge led by Mitch McConnell, a Republican leader in the Senate and a dedicated foe of all campaign-finance reform. (The case was known as McConnell v. Federal Election Commission.)

How could Bopp challenge a law that had just been upheld? He knew that the 2003 case was a challenge to McCain-Feingold “on its face”—that is, a claim that the law was going to be unconstitutional in all circumstances. A new case would challenge the law “as applied” against Wisconsin Right to Life. He would claim that this specific application of the law violated the group’s First Amendment rights. And Bopp didn’t wait around for the F.E.C. (a notoriously slow-moving agency) to charge his clients. Rather, he decided to bring a preëmptive lawsuit objecting to the ban on issue advertisements before elections.

Bopp knew that he had an important advantage over the failed challenge to McCain-Feingold in 2003. As part of a five-to-four majority, Sandra Day O’Connor had voted to uphold most of the law, but she had been succeeded by Samuel A. Alito, Jr.

Bopp’s confidence turned out to be justified. When Federal Election Commission v. Wisconsin Right to Life was decided, in 2007, the Court voted five to four to overturn the limits on the advertisements. Roberts, Scalia, Kennedy, Thomas, and Alito found the restriction on Wisconsin Right to Life unconstitutional; John Paul Stevens, Souter, Ginsburg, and Breyer would have upheld the ban on the commercials.

Chief Justice Roberts assigned the opinion to himself. He was still trying to prove that he was cautious and respectful of precedent, as he had claimed to be during his 2005 confirmation hearing. But now he was part of a majority that was, in effect, gutting a four-year-old opinion. Roberts completed this mission with typical finesse, declaring that “the First Amendment requires us to err on the side of protecting political speech rather than suppressing it.” Roberts did not explicitly call for overturning McCain-Feingold, but he left little doubt where the Court was heading. Referring to the McConnell case, the 2003 decision upholding the law, Roberts wrote, “We have no occasion to revisit that determination today.”

“Today.” To those who know the language of the Court, the Chief Justice was all but announcing that five Justices would soon declare the McCain-Feingold law unconstitutional.

Bopp again took an aggressive tack when he began representing David Bossie’s Citizens United group in its effort to broadcast the “Hillary” documentary. The movie had multiple purposes: to advance the conservative cause, to hurt Hillary Clinton’s chances for victory, and to make money. The question, then, was how the F.E.C. would classify the movie and the advertisements for it. Under the F.E.C. rules, if “Hillary” was deemed a work of journalism or entertainment, like “Fahrenheit 9/11,” Bossie could show it anytime he wanted. But if the F.E.C. regarded “Hillary” and commercials for it as an “electioneering communication”—that is, as “speech expressly advocating the election or defeat of a candidate”—then it could not be broadcast during the proscribed election periods.

Bossie went straight to the F.E.C. to get a ruling on “Hillary.” As expected, the F.E.C. ruled that the documentary amounted to an “electioneering communication.” The group then appealed to the federal district court in Washington. A three-judge panel agreed with the F.E.C., holding that the movie “ is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.”

Bossie was determined to appeal to the Supreme Court, and at this point he decided to change lawyers. Bossie may have arrived in Washington as a flame-throwing outsider, but during the previous decade he had become part of the conservative establishment. He knew that Bopp had just won the Wisconsin Right to Life case before the Justices, but Bossie’s financial life and potentially his place in history were on the line in Citizens United. He wasn’t going to leave his fate in the hands of a lawyer from Terre Haute.

Instead, he asked Theodore Olson to take the case. Olson was a titanic figure in conservative legal circles. Bossie first met him in the nineties, when Olson and his wife, Barbara, were outspoken fellow-critics of Bill Clinton. (Barbara Olson was killed on the plane that crashed into the Pentagon on September 11, 2001.) As a lawyer at the firm of Gibson, Dunn & Crutcher, Ted Olson had argued and won Bush v. Gore, and was rewarded by President Bush with an appointment as Solicitor General. Olson had argued before the Supreme Court dozens of times, and he had a great deal of credibility with the Justices. He knew how to win.

Olson, a litigator more than an activist, quickly shifted tactics in the case. He tried to narrow the issues in Citizens United, so that the Court would not have to take any dramatic steps in order to rule his way. He did not focus his challenge on the constitutionality of McCain-Feingold; he simply said, as he told the Justices at the oral argument, that the law did not apply to documentaries broadcast with video-on-demand technology, only to commercials. Then Malcolm Stewart, the Deputy Solicitor General, rose to offer his rebuttal, and a single question changed the case, and perhaps American history.

Whenever the federal government is involved in litigation before the Supreme Court, the Office of the Solicitor General handles the representation. In an age when the reputations of many government agencies have suffered, the Solicitor General’s office has remained a symbol of excellence: small, élite, and respected by its most important audience, the Justices.

Since the position of Solicitor General was created, in 1870, some of the most distinguished lawyers in the country’s history have served in it. William Howard Taft, before he became President and then Chief Justice, was an early S.G., and Franklin Roosevelt put two of his Solicitors General, Stanley Reed and Robert H. Jackson, on the Supreme Court. In the sixties and seventies, the office was consecutively occupied by Archibald Cox, Thurgood Marshall, Erwin Griswold (previously the longtime dean of Harvard Law School), and Robert Bork. Kenneth Starr stepped down from a judgeship in the D.C. Circuit to be George H. W. Bush’s S.G.

For all that the Solicitor General serves as the public face of the office, and as an important senior political appointee, the career employees act as its principal representatives to the Court. Only two of the twenty-two lawyers in the office are political appointees, so most move seamlessly from one Administration to the next.

By tradition, the S.G. staff operates according to a different standard from that of the hired guns who generally appear before the Supreme Court. The Solicitor General’s lawyers press their arguments in a way that hews strictly to existing precedent. They don’t hide unfavorable facts from the Justices. They are straight shooters. This is why, in many cases, even when the federal government is not a party, the Court issues what’s known as a C.V.S.G.—a call for the views of the Solicitor General. The lawyers in the S.G.’s office are not neutral, but they are more highly respected than other advocates. They dress differently, too, wearing a morning coat, vest, and striped pants when they appear in the Supreme Court.

Malcolm Stewart, the lawyer in the Solicitor General’s office who argued the Citizens United case, embodied the best of the office. A graduate of Princeton and then Yale Law School, he had clerked for Harry Blackmun in the 1989 term. He joined the Solicitor General’s office in 1993, and his career thrived through three Presidencies and more than forty oral arguments. He twice won a John Marshall Award, one of the highest honors in the department. Shortly before the Citizens United argument, Stewart had been named a Deputy Solicitor General, the highest rank for a career lawyer.

The Justices say that oral arguments rarely make a difference in the outcome of cases. But in Citizens United Stewart’s appearance was an epic disaster.

Money Unlimited Chief Justice John Roberts and Citizens United

On the day of Citizens United, Samuel Alito appeared miserable, as usual. Alito enjoyed his job well enough, but he was uncomfortable with its public aspects. He liked reading cases and making decisions. He disliked pomp and bureaucracy. (Alito didn’t even like hiring law clerks. For years, he chose clerks who had worked for him on the Third Circuit, so that he wouldn’t have to interview new ones.) After Thomas, Alito tended to ask the fewest questions of any Justice. But no Justice asked better questions than Alito. It was easy to tell which way Alito was leaning, because his questions were so hard for the lawyer he was targeting to answer. Alito had radar for weak points in a presentation, and in this case he saw a hole in Malcolm Stewart’s.

Alito wanted to push Stewart down a slippery slope. Since McCain-Feingold forbade the broadcast of “electronic communications” shortly before elections, this was a case about movies and television commercials. What else might the law regulate? “Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?” Alito said. Could the law limit a corporation from “providing the same thing in a book? Would the Constitution permit the restriction of all those as well?”

Yes, Stewart said: “Those could have been applied to additional media as well.”

The Justices leaned forward. It was one thing for the government to regulate television commercials. That had been done for years. But a book? Could the government regulate the content of a book?

“That’s pretty incredible,” Alito responded. “You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?”

“I’m not saying it could be banned,” Stewart replied, trying to recover. “I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its—” But clearly Stewart was saying that Citizens United, or any company or nonprofit like it, could not publish a partisan book during a Presidential campaign.

Kennedy interrupted. He was the swing Justice in many areas of the law, but joined the conservatives in all the campaign-spending cases. Sensing vulnerability on the subject of books, he joined Alito’s assault.

“Well, suppose it were an advocacy organization that had a book,” Kennedy said. “Your position is that, under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the sixty- and thirty-day periods?”

Stewart’s answer was a reluctant, qualified yes.

But neither Alito nor Kennedy had Roberts’s instinct for the jugular. The Chief Justice wanted to make Stewart’s position look as ridiculous as possible. Roberts continued on the subject of the government’s censorship of books, leading Stewart into a trap.

“If it has one name, one use of the candidate’s name, it would be covered, correct?” Roberts asked.

“That’s correct,” Stewart said.

“If it’s a five-hundred-page book, and at the end it says, ‘And so vote for X,’ the government could ban that?” Roberts asked.

“Well, if it says ‘vote for X,’ it would be express advocacy and it would be covered by the preëxisting Federal Election Campaign Act provisions,” Stewart continued, doubling down on his painfully awkward position.

Through artful questioning, Alito, Kennedy, and Roberts had turned a fairly obscure case about campaign-finance reform into a battle over government censorship. The trio made Stewart—and thus the government—take an absurd position: that the government might have the right to criminalize the publication of a five-hundred-page book because of one line at the end. Still, the Justices’ questioning raised important issues. Based on the theory underlying McCain-Feingold, could Congress pass any law to ban a book? And was Stewart right to acknowledge that it did?

Stewart was wrong. Congress could not ban a book. McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.

As for Stewart’s performance, his defenders pointed to the unique role of the Solicitor General. A private lawyer could have danced around the implications of the law and avoided making any concession, but Stewart had a special obligation to be straight with the Justices, even if the answers hurt his cause. Stewart’s critics—and there were many—said that he had no obligation to try to answer an absurdly far-fetched hypothetical involving the censorship of books. By doing so, according to this view, Stewart wasn’t being honest—he was being foolish. He should have asserted that the federal government had neither the obligation nor the right to stop the publication of a book. Like most arguments about the quality of advocacy, this one had no clear resolution. Evidently, though, the damage to the government’s case had been profound.

At this point, the vagaries of the Supreme Court calendar played a part in the resolution of the case. Citizens United was argued near the end of the term, in late March. (The last arguments are usually at the end of April, and the decisions are released by the end of June.) So there was not a lot of time for the Justices to reach a consensus. At their initial conference, the vote was the same as for Wisconsin Right to Life, with Kennedy joining the four other conservatives.

A private drama followed which in some ways defined the new Chief Justice to his colleagues. Roberts assigned the Citizens United opinion to himself. Even though the oral argument had been dramatic, Olson had presented the case to the Court in a narrow way. According to the briefs in the case—and Olson’s argument—the main issue was whether the McCain-Feingold law applied to a documentary, presented on video on demand, by a nonprofit corporation. The liberals lost that argument: the vote at the conference was that the law did not apply to Citizens United, which was free to advertise and run its documentary as it saw fit. The liberals expected that Roberts’s opinion would say this much and no more.

At first, Roberts did write an opinion roughly along those lines, and Kennedy wrote a concurrence which said the Court should have gone much further. Kennedy’s opinion said the Court should declare McCain-Feingold’s restrictions unconstitutional, overturn an earlier Supreme Court decision from 1990, and gut long-standing prohibitions on corporate giving. But after the Roberts and Kennedy drafts circulated, the conservative Justices began rallying to Kennedy’s more expansive resolution of the case. In light of this, Roberts withdrew his own opinion and let Kennedy write for the majority. Kennedy then turned his concurrence into an opinion for the Court.

The new majority opinion transformed Citizens United into a vehicle for rewriting decades of constitutional law in a case where the lawyer had not even raised those issues. Roberts’s approach to Citizens United conflicted with the position he had taken earlier in the term. At the argument of a death-penalty case known as Cone v. Bell, Roberts had berated at length the defendant’s lawyer, Thomas Goldstein, for his temerity in raising an issue that had not been addressed in the petition. Now Roberts was doing nearly the same thing to upset decades of settled expectations.

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.” The parties were directed to file new briefs. In plain English, the Court’s order told the parties that the Justices were considering overruling two major decisions in modern campaign-finance law. Most important, the Court was weighing whether to overturn its endorsement of McCain-Feingold in the McConnell case of 2003. As every sophisticated observer of the Court knew, the Court did not ask whether cases should be overruled unless a majority of the Justices were already prepared to do so. And Roberts and his allies were so impatient to overturn these precedents that they were not even going to wait for the first Monday in October. (An early argument would also put a decision in place well before the 2010 elections.) The second argument in Citizens United was set for September 9, 2009.

The Supreme Court first addressed the struggle over money and politics in a peculiar, almost backhanded way. In 1886, just before the oral argument in an obscure and uncontroversial tax case called Santa Clara County v. Southern Pacific Railroad, Chief Justice Morrison R. Waite told the lawyers, “The court does not want to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution . . . applies to these corporations. We are all of opinion that it does.” In 1978, as then Justice Rehnquist described the Santa Clara case, “This Court decided at an early date, with neither argument nor discussion, that a business corporation is a ‘person’ entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment.”

The historical context for the Court’s decision was clear. In the aftermath of the Civil War, the Court remained what it had been before the war—a very conservative institution. During Reconstruction, Congress and the states passed three new Amendments to the Constitution—the Thirteenth, the Fourteenth, and the Fifteenth—to give the newly freed slaves the full rights of citizenship. Almost immediately, the Supreme Court did its best to undermine these new provisions. At the same time, the Justices became accomplices in the excesses of the Gilded Age. In a series of cases, including Santa Clara, the Court thwarted attempts by state and local governments to restrain commercial and corporate interests.

:{This period of the Court’s history led into what is known as the Lochner era, for the most famous case of its day. In an early attempt to protect workers from exploitation, New York passed a law prohibiting bakery employees from working more than sixty hours a week or ten hours a day. In Lochner v. New York (1905), the Court declared the state law unconstitutional, on the ground that it interfered with the “right of contract” of both the employer and the employee. For a five-to-four majority, Justice Rufus Peckham found the New York law an “unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.”

In simple terms, the majority in Lochner turned the Fourteenth Amendment, which was enacted to protect the rights of newly freed slaves, into a mechanism to advance the interest of business owners. The Court basically asserted that most attempts to regulate the private marketplace, or to protect workers, were unconstitutional. The Lochner era reflected conservative judicial activism, which has a long history at the Court. The decisions of the nineteen-thirties, which rejected central aspects of Franklin Roosevelt’s New Deal, also showed how conservative Justices would overrule the democratically elected branches. It was only in the Warren Court era, in the fifties and sixties, that liberal judicial activism became a force at the Court, as the Justices began overturning laws that violated the rights of minorities and women.}:

The conservatism of the Lochner era at the Supreme Court, and in the broader political world, generated a backlash. Antitrust legislation, food-safety rules, child-labor laws, woman’s suffrage, a tax on income—all came together under the broad rubric of Progressivism. Theodore Roosevelt, who became President in 1901, made the movement his own.

Roosevelt won a landslide victory in 1904, helped in part by vast campaign contributions from corporations. He drew heavily from railroad and insurance interests, and in the last days before the election he reportedly made a personal appeal for funds to Henry Clay Frick, the steel baron, and other industrialists. Years later, Frick recalled of Roosevelt, “He got down on his knees to us. We bought the son-of-a-bitch and then he did not stay bought.” Almost as soon as Roosevelt won the election, he turned his attention to passing the first significant campaign-finance-reform act in American history—trying to outlaw the very techniques he had just used to stay in office.

In 1907, Congress passed the Tillman Act, named for the eccentric rogue Pitchfork Ben Tillman, the South Carolina senator who sponsored the legislation. The law barred corporations from contributing directly to federal campaigns, and established criminal penalties for violations. Loopholes proliferated, allowing, for example, individuals to give as much as they wanted to political campaigns and to be reimbursed for the contributions by their employers. Still, the Tillman Act was a first step toward what Congress described as its goal: elections “free from the power of money.”

That never happened. In subsequent decades, the power of money in politics only grew. After the Second World War, candidates began to campaign principally by buying advertisements on television, and that strategy created an ever-increasing need for cash. Richard Nixon’s obsession with campaign fund-raising was one of the principal motivations that led to the Watergate scandals.

Watergate precipitated the next wave of campaign-finance reform, the Federal Election Campaign Act Amendments of 1974, which supplemented the 1971 law and created much of the regulatory structure that endures today. The law imposed unprecedented limits on campaign contributions and spending; created the Federal Election Commission to enforce the act; established an optional system of public financing for Presidential elections; and required extensive disclosure of campaign contributions and expenditures.

Shortly after it went into effect, a group of politicians, including James L. Buckley, then a senator from New York, and Eugene McCarthy, the former senator and Presidential candidate, challenged the new rules as unconstitutional. The resulting decision, known as Buckley v. Valeo, issued in 1976, has gone down in history as one of the Supreme Court’s most complicated, contradictory, incomprehensible (and longest) opinions.

To this day, no one even knows who really wrote it. It is signed “per curiam”—“by the Court”—which the Justices usually use for brief and minor opinions. In Buckley v. Valeo, however, the label was used by the Court to signal a team effort, of sorts. William Brennan is generally regarded to have written much of Buckley, but Brennan’s biographers note that sections were also composed by Warren E. Burger, Potter Stewart, Lewis Powell, and William Rehnquist. Not surprisingly, in light of the multiple authors, the opinion is a product of several compromises.

At its center is a distinction between expenditures and contributions. The Court said that, under the First Amendment, Congress could not restrict campaign expenditures. Spending money was like speech itself, because “every means of communicating ideas in today’s mass society requires the expenditure of money.” That included printing handbills, renting halls, and buying ads on television. It is a result of Buckley that wealthy candidates like Mayor Michael Bloomberg can spend as much as they want of their own money on their campaigns; it would be unconstitutional to limit their expenditures.

But, according to Buckley, limits on contributions were constitutionally permissible. The Court said that a campaign contribution served only as “a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support.” In the Court’s view, limiting contributions did not significantly inhibit political expression by the person giving the money. This was why the Court concluded that it was permissible for the law to limit how much an individual could contribute to any particular campaign.

In the 1974 law, Congress had tried to set up a tightly controlled system for financing campaigns: the government would monitor and regulate both the inflows and the outflows of money. It is not clear that the proposal would have worked as intended, but at least it made holistic sense. Congress could essentially select a number for the over-all price of a congressional or Presidential campaign, and then force candidates to live within that number. Buckley ended that system before it even started, and imposed a different one, of the Justices’ own creation. The court declared that contributions could be limited but expenditures could not, and for two generations that distinction has been the central feature of the constitutional rules of campaign finance. The bottom line was that money is speech.

On the morning of September 9, 2009, a car arrived outside the Justice Department to take the government’s team to the Supreme Court for the reargument of Citizens United. Elena Kagan, the Solicitor General, took the front seat, and three of her deputies piled into the back. She had been confirmed by the Senate a few days before the first Citizens United argument, and the reargument would mark her début before the Justices. Kagan, at the age of forty-eight, had never argued a case before an appellate court. Citizens United would be the first time.

“C’mon, guys,” she said to those in the back. “It’s my first day. Psych me up!”

The deputies looked at one another, and, after a lengthy pause, one whispered, “Go get ’em.”

“Ugh,” Kagan said. “You guys suck!”—and the laughter broke the tension in the car.

At precisely ten o’clock, the Chief Justice called Ted Olson to the lectern. Like everyone associated with the case, Olson could tell from the new Questions Presented that the Court was leaning his way—heading for a ruling that was far broader than the one he had originally sought. Olson argued cautiously, as if protecting a lead. The liberal quartet of Justices, recognizing that their position was probably hopeless, did their best to raise the alarm with the public, if not with their colleagues. Ginsburg brought up one potential source of future controversy.

“Mr. Olson,” Ginsburg said, “are you taking the position that there is no difference” between the First Amendment rights of a corporation and those of an individual? “A corporation, after all, is not endowed by its creator with inalienable rights. So is there any distinction that Congress could draw between corporations and natural human beings for purposes of campaign finance?”

“What the Court has said in the First Amendment context . . . over and over again,” Olson replied, “is that corporations are persons entitled to protection under the First Amendment.”

“Would that include today’s mega-corporations, where many of the investors may be foreign individuals or entities?” Ginsburg went on.

Olson was ready: “The Court in the past has made no distinction based upon the nature of the entity that might own a share of a corporation.”

The questioning turned to Kagan. Like many members of the S.G.’s office, Kagan thought that the women’s version of the morning coat looked ridiculous. Through intermediaries, she had asked the Justices if they would mind if she appeared in a normal business suit. None objected, and that was what she wore.

“Mr. Chief Justice, and may it please the Court,” Kagan began, “I have three very quick points to make about the government position. The first is that this issue has a long history. For over a hundred years Congress has made a judgment that corporations must be subject to special rules when they participate in elections, and this Court has never questioned that judgment.

“Number 2—”

“Wait, wait, wait, wait,” Scalia said.

Given the circumstances, Kagan must have known that she had launched herself on a suicide mission. Her best hope was to limit the damage, perhaps by persuading the Court to strike down this particular application of McCain-Feingold rather than invalidate the entire law. Or, as Kagan put it to Roberts, “Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes.”

As the argument proceeded, Stevens tried to help Kagan along these lines, suggesting that the Court could resolve the case with a narrow ruling. For example, the Justices could create an exception in the McCain-Feingold law for nonprofits like Citizens United, or for “ads that are financed exclusively by individuals even though they are sponsored by a corporation.” Grasping the Stevens lifeline, Kagan said, more or less, “Yes, that’s exactly right.”

“Nobody has explained why that wouldn’t be a proper solution, not nearly as drastic,” Stevens went on. “Why is that not the wisest narrow solution of the problem before us?”

Ginsburg did Kagan the favor of allowing her to undo some of the damage from Stewart’s argument in March. “May I ask you one question that was highlighted in the prior argument, and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies?” Ginsburg said. “Last time, the answer was yes, Congress could, but it didn’t. Is that still the government’s answer?”

“The government’s answer has changed, Justice Ginsburg,” Kagan replied, and the well-informed audience in the courtroom laughed. “We took the Court’s own reaction to some of those other hypotheticals very seriously. We went back, we considered the matter carefully.” Kagan said that Congress could not ban a book. But the damage had been done.

After the second argument of Citizens United, the votes were the same as after the first one. Roberts, Scalia, Kennedy, Thomas, and Alito voted to overturn the judgment of the F.E.C., with Stevens, Ginsburg, Breyer, and Sonia Sotomayor (who had replaced Souter) on the other side. Because of the much broader Questions Presented, Roberts was now well within his rights to resurrect the earlier draft opinion and lead the charge to bury decades of campaign-finance law.

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.

Roberts assigned the opinion in Citizens United to Anthony Kennedy. It was another brilliant strategic move. When Alito replaced O’Connor, in 2006, the Court was locked into a consistent four-four conservative-liberal split, and Kennedy became the most powerful Justice in decades. On controversial issues—including abortion, affirmative action, civil rights, the death penalty, and federal power, among others—he controlled the outcome of cases. For the previous twenty years or so, O’Connor had most often held the swing vote, though she never controlled as many cases as Kennedy has.

:{:{There was a striking difference in the ways that O’Connor and Kennedy handled being the swing vote. O’Connor was a gradualist, a compromiser, a politician who liked to make each side feel that it won something. When she was in the middle in a case, she would, in effect, give one side fifty-one per cent and the other forty-nine. In Planned Parenthood of Southeastern Pennsylvania v. Casey, in 1992, she saved abortion rights; in Grutter v. Bollinger, in 2003, she preserved racial preferences in admissions for the University of Michigan law school; in Rasul v. Bush and Hamdi v. Rumsfeld, in 2004, she repudiated the Bush Administration’s approach to the detainees held at Guantánamo Bay.}:

O’Connor split the difference each time. Yes to restrictions on abortion but no to outright bans; yes to affirmative action but no to quotas; yes to the right of detainees to go to court but no to the full constitutional rights of American citizens. In describing her judicial philosophy, O’Connor liked to point to the sculpted turtles that formed the base of the lampposts outside the Supreme Court. “We’re like those turtles,” she would say. “We’re slow and steady. We don’t move too fast in any direction.”}:

Anthony Kennedy was no turtle. He tended to swing wildly in one direction or the other. When he was with the liberals, he could be very liberal. His opinion in Lawrence v. Texas, the 2003 opinion striking down laws against consensual sodomy, contains a lyrical celebration of the rights of gay people. In Boumediene v. Bush, the 2008 case about the rights of accused terrorists, he excoriated the Bush Administration and Congress. “To hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, ‘say what the law is,’ ” he wrote, quoting Chief Justice John Marshall’s famous words from 1803, in Marbury v. Madison. No one relished saying “what the law is” more than Kennedy.

But in his conservative mode Kennedy could be harshly dismissive of women’s autonomy, as in Gonzales v. Carhart, the 2007 late-term-abortion law case. (“Some women come to regret their choice to abort the infant life they once created and sustained,” he noted. “Severe depression and loss of esteem can follow.”) Kennedy is believed to have written the most notorious sentence in the majority opinion in Bush v. Gore, acknowledging that the Court acted for the sole benefit of George W. Bush: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Kennedy was not a moderate but an extremist—of varied enthusiasms.

All the Justices knew that Kennedy’s views were most extreme when it came to the First Amendment. In the Roberts Court, there was often a broad consensus about protecting freedom of speech. Some areas of the law that had once been controversial, such as the suppression of dangerous or unpopular views, were resolved with little disagreement. Still, even in a legal system that protects free speech, the government had long been able to regulate speech in all kinds of ways. Copyright infringement was subject to civil and criminal remedies; extortion and other crimes involving the use of words were routinely punished. Campaign contributions, if they were considered “speech” at all, had been regulated for more than a century.

But Kennedy was extremely receptive to arguments that the government had unduly restricted freedom of speech—especially in the area of campaign finance. Throughout his long tenure on the Court, he had dissented, often in strident terms, anytime his colleagues upheld regulations in that area. In addition, Kennedy loved writing high-profile opinions.

Roberts, during his confirmation hearing, made much of his judicial modesty and his respect for precedent. If the Chief had written Citizens United, he would have been criticized for hypocrisy. But by giving the opinion to Kennedy he obtained a far-reaching result without leaving his own fingerprints. Kennedy had already written a draft majority opinion in the case. He would write even more expansively than Roberts had done in his never-published opinion in the case.

Kennedy did not disappoint the Chief Justice. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people,” he wrote for the Court in his familiar rolling cadence. “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” These rhetorical flights were a long way from the gritty business of raising and spending campaign money.

Kennedy often saw First Amendment issues in terms of abstractions. Citizens United, at its core, concerned a law that set aside a brief period of time (shortly before elections) when corporations could not fund political commercials. To Kennedy, this was nothing more than censorship: “By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.”

Moreover, Kennedy wrote, “The Court has recognized that First Amendment protection extends to corporations.” This had been true since 1886, and speech, especially political speech, could never be impeded. “The censorship we now confront is vast in its reach,” Kennedy wrote. “The Government has muffled the voices that best represent the most significant segments of the economy. And the electorate has been deprived of information, knowledge and opinion vital to its function. By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.

“If the First Amendment has any force,” Kennedy concluded, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

So McCain-Feingold, and two Supreme Court precedents, had to be mostly overruled. The Constitution required that all corporations, for-profit and nonprofit alike, be allowed to spend as much as they wanted, anytime they wanted, in support of the candidates of their choosing. For the moment, at least, the ban on direct corporate contributions to candidates remained intact.

:{:{John Paul Stevens was just short of ninety at the time of Citizens United, and he belonged to a vanishing political tradition—that of the moderate Midwestern Republican. His first sponsor for a federal judgeship was Senator Charles Percy; Gerald Ford appointed Stevens to the Court based on the recommendation of his Attorney General, Edward Levi, who had been the dean of the University of Chicago Law School.}:

For decades, moderate Republicans had played crucial roles on the Supreme Court: John Marshall Harlan II, in the fifties; Potter Stewart, in the sixties; Lewis Powell, in the seventies and eighties; and O’Connor, in the nineties and the new millennium. In his early years on the Court, Stevens settled into the ideological center, between William Brennan and Thurgood Marshall, on the left, and Rehnquist, then an Associate Justice, and Chief Justice Warren Burger, on the right. Stevens’s voting record was roughly in line with the Republican appointees such as Stewart, Powell, Harry Blackmun, and O’Connor.}:

But as Justices were replaced by more contemporary Republicans, Stevens often found himself described as a liberal. He did move to the left, especially on the death penalty. But his evolution into the leader of the liberal wing was mostly the result of the rest of the Court moving so far to the right.

Stevens became the senior Associate Justice after Blackmun stepped down, in 1994, and during the next decade he was confident that he could pull together majorities for his side. Toward the end of the Rehnquist Court, Stevens had a string of good years, as O’Connor became a frequent ally, especially on issues relating to Guantánamo. Kennedy, too, joined Stevens’s side on gay rights and some death-penalty cases. More often than his liberal colleagues, Stevens voted to review controversial cases. Ginsburg and Breyer, fearing disaster if the Court took these cases, tended to prefer not to address them.

But John Roberts and Samuel Alito sapped John Paul Stevens’s optimism. In less than five years, the pair of Bush appointees, joined by Scalia, Thomas, and, usually, Kennedy, had overturned many of the Court’s precedents. Unlike his new conservative colleagues, Stevens, like Souter, thought that the law should develop slowly, over time, with each case building logically on its predecessors. The course of Citizens United represented everything that offended Stevens most about the Roberts Court.

In some ways, Stevens’s greatest objections were procedural. Like Ginsburg (and almost no one else), Stevens had a deep fascination with the mysteries of federal procedure. He was happy to wade into the subject for hours. (Stevens was the only Justice who generally wrote his own first drafts of opinions.) So it was especially galling that the Court converted Citizens United from a narrow dispute about the application of a single provision in McCain-Feingold to an assault on a century of federal laws and precedents. To Stevens, it was the purest kind of judicial activism.

Or, as he put it in his dissenting opinion, “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.” The case should have been resolved by simply ruling on whether McCain-Feingold applied to “Hillary: The Movie,” or at least to nonprofit corporations like Citizens United.

Stevens was just warming up. His dissent was ninety pages, the longest of his career. He questioned every premise of Kennedy’s opinion, starting with its contempt for stare decisis, the rule of precedent. He went on to refute Kennedy’s repeated invocations of “censorship” and the “banning” of free speech. The case was merely about corporate-funded commercials shortly before elections. Corporations could run as many commercials as they liked during other periods, and employees of the corporations (by forming a political-action committee) could run ads at any time.

Stevens was especially offended by Kennedy’s blithe assertion that corporations and human beings had identical rights under the First Amendment. “The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare,” Stevens wrote. “Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.” Congress and the courts had drawn distinctions between corporations and people for decades, Stevens wrote, noting that, “at the federal level, the express distinction between corporate and individual political spending on elections stretches back to 1907, when Congress passed the Tillman Act.”

As for Kennedy’s fear that the government might regulate speech based on “the speaker’s identity,” Stevens wrote, “We have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees.” And Stevens, a former Navy man, could not resist a generational allusion: he said that Kennedy’s opinion “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.” (Stevens’s law clerks didn’t like the dated reference to Tokyo Rose, who made propaganda broadcasts for the Japanese, but he insisted on keeping it.)

Stevens’s conclusion was despairing. “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt,” he wrote. “It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” It was an impressive dissent, but that was all it was. Anthony Kennedy, on the other hand, was reshaping American politics.

:{:{Six days after the Court’s decision, President Obama gave his State of the Union address. Picking up on the issue that Ginsburg had raised in the oral argument—the possibility of foreigners buying influence in American elections—the President declared, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.”}:

The Democrats in the chamber rose in a standing ovation as Obama continued, “I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities.” Cameras caught Alito mouthing the words “not true” when Obama mentioned foreign corporations. Alito had a point. Kennedy’s opinion expressly reserved the question of whether the ruling applied to foreign corporations. But, as Olson had argued before the Justices, the logic of the Court’s prior decisions suggested that foreign corporations had equal rights to spend in American elections.}:

In any event, the implications of Citizens United were quickly apparent. In March, 2010, the D.C. Circuit ruled that individuals could make unlimited contributions to so-called Super PACs, which supported individual candidates. This opened the door for Presidential campaigns in 2012 that were essentially underwritten by single individuals. Sheldon Adelson, the gambling entrepreneur, gave about fifteen million dollars to support Newt Gingrich, and Foster Friess, a Wyoming financier, donated almost two million dollars to Rick Santorum’s Super PAC. Karl Rove organized a Super PAC that has raised about thirty million dollars in the past several months for use in support of Republicans.

:{:{These developments have drawn some criticism, but the Court appears determined to extend the deregulatory revolution that it began in Wisconsin Right to Life and Citizens United. Last year, the Court struck down Arizona’s system of public financing of elections, which the state had passed after a series of political scandals involving fund-raising. The Arizona system gave additional funds to candidates for certain state offices who were being heavily outspent by their privately funded opponents. By the customary vote of five-to-four, with an opinion by Roberts, the Court declared the system unconstitutional.}:

As Kennedy had in Citizens United, Roberts said that governments could never take steps to equalize opportunities for candidates in electoral contests. “ ‘Leveling the playing field’ can sound like a good thing,” he wrote. “But in a democracy, campaigning for office is not a game. It is a critically important form of speech. The First Amendment embodies our choice as a Nation that, when it comes to such speech, the guiding principle is freedom—the ‘unfettered interchange of ideas.’ ” The Roberts Court, it appears, will guarantee moneyed interests the freedom to raise and spend any amount, from any source, at any time, in order to win elections. ♦}:

Published in the print edition of the May 21, 2012, issue.

Jeffrey Toobin, the chief legal analyst for CNN, was a staff writer at The New Yorker from 1993 to 2020.

(Justice) Anthony Kennedy

(Justice) Antonin Scalia

(Justice) Clarence Thomas

(Justice) John Paul Stevens

(Justice) Ruth Bader Ginsburg

(Pres.) Richard Nixon

(Pres.) Theodore Roosevelt

(Senator) Mitch McConnell

Ann Coulter

Arizona

Barack Obama

Bush v. Gore

Campaign-Finance Reform

Chief Justice John Roberts

Chief Justices

Commercials

Conservatives

Corporations

Federal Election Commission (F.E.C.)

First Amendment

Henry Clay Frick

Hillary Clinton

Jr.

Judicial Activism

justice-sandra-day-oconnor-tag

Karl Rove

Michael Moore

Nonprofits

Sheldon Adelson

Super PACs

Theodore Olson

U.S. Supreme Court

Watergate

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BRENNAN CTR

T he Pro-Money Court: How the Roberts Supreme Court Dismantled Campaign Finance Law

David Earley
Avram Billig

April 2, 2014

Reform Money in Politics

- Campaign Finance in the Courts

The Supreme Court’s McCutcheon v. FEC decision further increases the influence of big money in elections. But McCutcheon is just the latest in a long string of cases weakening campaign finance rules. Since Chief Justice John Roberts and Justice Samuel Alito joined the Court in 2005 and 2006 respectively, six decisions have significantly reshaped the legal landscape dictating how much big money can flow into political races. Here is some background on what the Court did, how it affected American elections, and what could happen next.

2007: Federal Election Commission (FEC) v. Wisconsin Right to Life, Inc.

The SCOTUS Ruling:The Court struck down a law regulating sham issue ads — television advertisements that clearly target specific candidates, but avoid regulation by posing as “issue” ads. For example, an advertisement referring to a candidate by name close to the election, but instead of explicitly advocating voting for or against the candidate, tells the viewer to “call Rep. Smith and tell him to stop corporate polluters.”

The Majority Opinion:Chief Justice Roberts on the continued regulation of issue ads: “Enough is enough. Issue ads like WRTL’s are by no means equivalent to contributions, and the quid-pro-quocorruption interest cannot justify regulating them.”

The Dissenting Opinion:Justice Souter: “Neither Congress’s decisions nor our own have understood the corrupting influence of money in politics as being limited to outright bribery or discrete quid pro quo; campaign finance reform has instead consistently focused on the more pervasive distortion of electoral institutions by concentrated wealth, on the special access and guaranteed favor that sap the representative integrity of American government and defy public confidence in its institutions.”

The Result: By rejecting Congress’s decision to regulate political spending, the Court encouraged the creation of more and more political ads that circumvent campaign finance law by leaving out “magic words” such as “vote for” or “vote against.” As any voter who lives in a battleground state knows, these ads now dominate many elections, often funded by shadowy groups that do not reveal their donors.

2008: Davis v. FEC

The SCOTUS Ruling:The Court struck down the so-called “Millionaire’s Amendment,” which had permitted congressional candidates facing wealthy opponents who spent more than $350,000 of their own money on the race to raise larger contributions until they achieved parity with their wealthy opponents.

The Majority Opinion:Justice Alito: “While [the law] does not impose a cap on a candidate’s expenditure of personal funds, it imposes an unprecedented penalty on any candidate who robustly exercises that First Amendment right.”

The Dissenting Opinion:Justice Stevens: The law “does not impose any burden whatsoever on the self-funding candidate’s freedom to speak, it does not violate the First Amendment, and . . . it does no more than diminish the unequal strength of the self-funding candidate.”

The Result:Opponents of extremely wealthy candidates are left without an effective way to overcome their significant financial disadvantage. By striking down the “Millionaire’s Amendment,” the Court helped to ensure that Congress would continue to be dominated by the very wealthy, a state of affairs recently described by the Center for Responsive Politics.

2010: Citizens United v. FEC

The SCOTUS Ruling:The Court opened the door to allow unions and corporations, including for-profit corporations, to spend unlimited amounts on elections, as long as that money is not given directly to or used in coordination with a candidate.

The Majority Opinion: Justice Kennedy: “Ingratiation and access, in any event, are not corruption. . . .” “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”

The Dissenting Opinion: Justice Stevens: “In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.”

The Result: The Citizens United decision laid the groundwork for the creation of Super PACs, or independent political groups that can take in and spend unlimited sums. These groups, paired with newly unrestrained corporations and unions, have contributed to astronomical growth in independent political spending. Outside groups spent more than $1 billion dollars on the 2012 election, which is more than the total outside spending reported to the Federal Election Commission from 1980 to 2010. Outside spending in Senate races alone went from about $18 million in 2008 to about $260 million in 2012. Much of this money remains untraceable, as groups have taken advantage of loopholes in the election law and tax code to hide the identities of spenders.

2011: Arizona Free Enterprise Club v. Bennett

The SCOTUS Ruling:The Court struck down part of an Arizona program that provided public funds to candidates who agreed to only raise very small contributions from the public and to abide by campaign expenditure limits. Specifically, the program could no longer provide additional money to these candidates if they faced big-spending opponents.

The Majority Opinion:Chief Justice Roberts: “Laws like Arizona’s matching funds provision that inhibit robust and wide-open political debate without sufficient justification cannot stand.”

The Dissenting Opinion: Justice Kagan: “Some people might call [it] chutzpah” that those who challenged the law claim that it “violated theirFirst Amendment rights by disbursing funds to otherspeakers, even though they could have received (but chose to spurn) the same financial assistance.”

The Result:Public funding programs can no longer provide candidates with additional funds if they are vastly outspent by their opponents.

2012: American Tradition Partnership v. Bullock

SCOTUS Ruling:The Court struck down a Montana ban on corporate political spending and refused to reconsider Citizens Unitedeven as outside spending skyrocketed. The Court rejected the evidence relied upon by the Montana Supreme Court that outside spending can cause corruption and the appearance of corruption.

The Majority Opinion: Per Curiam: “The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does.”

The Dissenting Opinion:Justice Breyer: “Montana’s experience, like considerable experience elsewhere since the Court’s decision in Citizens United, casts grave doubt on the Court’s supposition that independent expenditures do not corrupt or appear to do so.”

The Result:By doubling down on its conclusion that corporate election spending may not be limited, the Court blocked future efforts to regulate outside money at the state level.

2014: McCutcheon v. FEC

SCOTUS Ruling: The Court struck down aggregate contribution limits — the amount one contributor can give in federal elections to all candidates, political parties, and PACs, combined. This marks the first time the Supreme Court has ever declared a federal contribution limit unconstitutional. The Court also defended giving access and influence to donors as a key democratic right, and ruled that donors have the same right to influence officials as do the constituents those officials are elected to represent.

TheControllingOpinion: Chief Justice Roberts: “[G]overnment regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. ‘Ingratiation and access . . . are not corruption.’ They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”

The Dissenting Opinion:Justice Breyer: “[This is] a decision that substitutes judges’ understandings of how the political process works for the understanding of Congress; that fails to recognize the difference between influence resting upon public opinion and influence bought by money alone; that overturns key precedent; that creates huge loopholes in the law; and that undermines, perhaps devastates, what remains of campaign finance reform.”

The Result:The decision allows candidates and parties to collect substantially larger sums from individual donors. A single politician may now use a joint fundraising committee to directly solicit more than $3.6 million from one donor in an election cycle. That’s about 70 times the median annual family income in America. The decision will embolden political spenders to wield their influence more freely and directly. And by striking down a federal contribution limit, the Court has endangered other contribution limits that remain on the books.

NOTE: In a 2006 case,Randall v. Sorrell, the Court struck down Vermont’s contribution limits as “burden[ing] First Amendment interests in a manner that is disproportionate to the public purposes they were enacted to advance.” The Court reasoned that the state’s relatively low limits inhibited electoral competition, a claim that has been rebutted by the Brennan Center. When Randall is included, the Roberts Court has struck down a total of seven campaign finance laws since 2006. Due to the limited reach of the decision, however, it was not included above as one of the cases to significantly reshape the money in politics legal landscape.*

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bush v gore democ labs

Supreme Court has three lawyers who worked on Bush v. Gore

Justices Clarence Thomas voted to suspend the vote count in Florida that ended up with George Bush Jr. as president. Three other justices worked on the Bush team including John Roberts, Brett Kavanaugh and Amy Comey Barrett. All three were later appointed to the Supreme Court! Roberts was appointed by Bush

John G. Roberts, Jr. was confirmed September 29, 2005, by the U.S. Senate as Chief Justice of the Supreme Court in a 78-22 vote. Roberts replaces Chief Justice William H. Rehnquist, who died on September 3, 2005. [1]

President George W. Bush nominated Roberts to be Supreme Court Chief Justice on September 5, 2005.

https://www.alternet.org/2022/02/supreme-court-2656768455/

shadow docket, roe, voter suppression

ok gerry again?!

https://www.alternet.org/2022/02/scotus-voting-rights/

ginni hired i hate blk ppl

https://www.alternet.org/2021/10/neil-gorsuch/

travis g raw

the U.S. Supreme Court's newly tilted right-wing majority will have a chance to leave its stamp on cases involving abortion, gun rights and torture, and the rulings will reveal who controls the court after Donald Trump jammed through three hardline conservatives.

The confirmation of Amy Coney Barrett to replace the late Ruth Bader Ginsburg takes away Chief Justice John Roberts' power to cast the deciding vote on any ruling, but legal experts disagree who will drive the majority's opinions in the session that starts this week, reported The Guardian. GUK

"Roberts's ambition is to keep the law as narrow as possible and keep as much of the court's legitimacy as possible while twirling ever toward the Republicans' agenda," said Elie Mystal, a justice correspondent for The Nation. "[Brett] Kavanaugh likes beer. Amy Coney Barrett likes Jesus. These are fundamentally narrow positions. Gorsuch wants to fundamentally change the law and reframe the way we think about the law. [Neil] Gorsuch wants to do horrible things, but ambitious things. He's got the intellectual tools to accomplish it."

Another court watcher thinks Justice Clarence Thomas will emerge as the most powerful member of the court.

"Roberts is only marginally in charge to the extent that he can bring Kavanaugh or Barrett with him," said Josh Blackman, of the South Texas College of Law Houston. "I think we are living in Justice Thomas's world. He is always thinking ahead several steps and has built an army of supporters."

Barrett and Justice Samuel Alito recently made unusually defensive remarks about the court's legitimacy after Mitch McConnell used his power as Senate majority leader to engineer a 6-3 conservative majority, which then allowed Texas to outlaw most abortions through its controversial "shadow docket" process.

"I think the thing to watch is whether Roberts can pick off one of the members of the [conservative] super majority to have the result come out differently than the hard right would want," said Garrett Epps, a professor at the University of Baltimore School of Law. "I think it may not be his court, but his role is by far the most interesting of any of the justices because he is – and he alone – an institutionalist, in the sense that he really cares about the Supreme Court and his place in history, more than he really cares about his own policy goals."

FROM YOUR SITE ARTICLES

‘A requiem for American democracy’: 5-4 Supreme Court vote rules partisan gerrymandering is ‘beyond the reach of the federal courts’

Elizabeth PrezaJune 27, 2019

The Supreme Court on Thursday in a 5-4 ideological split rejected limits to partisan gerrymandering, quashing an effort by advocates of political reform to rein in manipulative electoral district boundarie

https://www.alternet.org/2019/05/the-fate-of-american-democracy-may-hinge-on-one-person/

When Richard Nixon refused to comply with the Senate Watergate committee’s subpoena to turn over his White House tapes, the standoff resulted in litigation which made its way to the Supreme Court.

In an 8-0 decision (Justice Rehnquist recused himself), the Court ruled against Nixon and directed him to turn over the tapes to Congress.

Much like Nixon, the Trump Administration is refusing to comply with a lawful congressional subpoena for the full, unredacted Mueller report (and its supporting documents).

How would the current conservative Supreme Court rule on Trump’s clear defiance of established law?

There is little doubt this Court would be divided. No unanimous decision here, folks, as in United States v. Nixon.

You can bet on a 5-4 decision, either way.

Since Justice Anthony Kennedy retired from the Court, Chief Justice John Roberts has become the de facto “swing vote.” With four solid conservatives on the bench, now that Trump has been able to get Gorsuch and Kavanaugh to join the other two right-wing ideologues (Thomas and Alito), how would Roberts vote?

If Roberts joins his conservative colleagues, you can pretty much forget about the rule of law, and the Constitution for that matter, in this country. We will have a kneecapped congress unable to fulfill its oversight responsibilities, and we’ll have entered a new era of unchecked, unrestrained executive powers.

If Roberts sides with the four liberals on the Court, Ginsburg, Breyer, Sotomayor and Kagan, we will remain a nation that honors the Constitution and the separation of powers. The decision would serve as a strong rebuke to a lawless president and administration.

So what would Roberts do if some form of United States v. Trump makes its way to his court?

If you remember, much to the dismay of conservatives, Roberts was the deciding vote which upheld Obamacare (Affordable Care Act.)

Roberts is what I would label a principled conservative jurist who actually cares about the Court’s reputation and how history will judge him and his court.

As Michael O’Donnell writes in *The* *Atlantic*, “Roberts is the most interesting judicial conservative in living memory because he is both ideologically outspoken and willing to break with ideology in a moment of great political consequence. His response to the constitutional crisis that awaits will define not just his legacy, but the Supreme Court’s as well.”

While he has sided with his conservative colleagues in 87.5 percent of 5–4 decisions, I’m betting there is a better than 50-50 chance Roberts will do the right thing and tell Trump and his cabal of corrupt cohorts they are not above the law.

https://insideclimatenews.org/news/28062018/justice-anthony-kennedy-retirement-environmental-laws-climate-change-case-massachusetts-v-epa-supreme-court

To see why environmentalists are panicking about who President Donald Trump may put in the Supreme Court seat being vacated by Justice Anthony Kennedy, just go back 11 years and read the two dissents in the landmark climate change case Massachusetts v. EPA.

Not the majority opinion, where Kennedy provided the fifth, swing vote compelling the Environmental Protection Agency to regulate greenhouse gases as pollutants under the Clean Air Act. In the opening words of the ruling, the liberal wing of the court, joined by Kennedy, embraced the science of climate change.

No, what sends shudders down the spines of environmental advocates is the way the deeply conservative minority saw things back then, spelled out in a pair of dissents—one written by Chief Justice John Roberts and the other by the late Justice Antonin Scalia, whose seat Trump filled last year with Neil Gorsuch. Both dissents were also joined by Justices Clarence Thomas and Samuel Alito.

The dissents are hostile to an expansive view of EPA's powers under the Clean Air Act, but more profoundly, they are out of step with the core scientific understanding of global warming

. Scalia's core beliefs, known as "textualism," which would see no climate role for the agency in charge of protecting the environment unless it is expressly spelled out in statute. Congress, especially under the control of Republicans, doesn't look likely to crack down on pollution from the use of fossil fuels, whatever the risks to society.

And it's a nightmare to think that a new majority on the court might turn it into a sounding board for outright climate denial.

'Pure Conjecture'?

Roberts started off his dissent by stating that he would render "no judgment on whether global warming exists, what causes it, or the extent of the problem." But his framing of the question of standing—the threshold test of whether Massachusetts and other states even had the right to press their case in court—was out of step with the science.

On coastal damages from sea level rise, an eventuality that is not just a risk but a certainty, readily observed and directly caused by the warming of ocean waters and the melting of ice masses due to rising carbon dioxide, Roberts wrote: "It is pure conjecture."

As for strengthening controls on the greenhouse gas emissions from new cars, one of the main sources of carbon pollution and the focus of the litigation, their tailpipe fumes played only a "bit-part" in causing the problem, he said.

His point was that to even get their day in court, plaintiffs had to prove that a specific harm to them (coastal damage) had to be right around the corner (not decades away) and had to be knotted to a single act of regulatory neglect (lax auto standards).

Not even justice should be that blind.

It is well established that sea level rise is just one of the myriad dangers presented to public health and the environment by the unregulated use of fossil fuels. In the context of climate science, a century is the blink of an eye. And the moment EPA ruled that CO2 was a dangerous pollutant, not only the science but the law tells the federal government to control emissions from all significant sources, not just new cars.

Next, take a look at the other dissent, written by Scalia—a judge who conservatives consider the archetype for the next nominee to the high court.

Most of it is taken up by Scalia's brand of textualism, a contorted, dictionary-driven defense of the notion that man-made carbon dioxide is not even pollution.

"Regulating the buildup of CO2 and other greenhouse gases in the upper reaches of the atmosphere, which is alleged to be causing global climate change, is not akin to regulating the concentration of some substance that is polluting the air," he wrote.

What This Could Mean for Future Rules

Five like-minded justices "could overturn Mass. v. EPA or, perhaps more likely, significantly curtail its reach," said one legal scholar, Ann Carlson at the UCLA law school.

"Justice Scalia had already begun to lay the groundwork for curtailing EPA's power to regulate greenhouse gases in a subsequent case, *Utility Air Regulatory Group v. EPA*," she wrote. (There, the court upheld EPA rules on some sources, but said the agency had overreached on others.)

"With a new Justice on the Court who opposes Mass. v. EPA, it isn't hard to imagine the Court imposing significant limitations on EPA's ability to regulate greenhouse gases," she went on. "If a Democrat were elected President in 2020 and attempted to reinstate something like the Clean Power Plan, for example, we could well see the Supreme Court strike such a rule down."

She found it "even more alarming" that Alito and Thomas wanted to undo Massachusetts at that point. "Add Justice Gorsuch and the new Justice, persuade Justice Roberts to join in, and Mass. v EPA is overturned."

Richard Lazarus of Harvard told The Atlantic that Kennedy's absence might affect environmental law across the board. "He's been on the court just over 30 years, and he's been in the majority in every single environmental case but one. You don't win without Kennedy," he said.

Without knowing the name of the next justice, it's hard to predict more, other than that the court that ultimately decides the fate of the Clean Power Plan will lean even more to the right than the one that, just before Scalia died, issued a stay of that regulation.

Ever since the stay was issued, the litigation has been in limbo, although it looks like judicial patience is running out at the U.S. Court of Appeals for the District of Columbia Circuit, which held oral arguments almost two years ago.

Judge Brett Kavanaugh and Climate Change

Among the judges on that appellate bench was Brett Kavanaugh, who is on everyone's short list, including Trump's, to replace Kennedy.

Here's one of his comments that day, as reported by The New York Times:

"The earth is warming," Kavanaugh said. "Humans are contributing. I understand the international impact and the problem of the commons. The pope's involved. And I understand the frustration with Congress."

But he echoed Chief Justice Roberts' thinking when he went on: "If Congress does this, they can account for the people who lose their jobs. If we do this, we can't."

If Kavanaugh becomes the nominee, those words would likely resonate with pro-coal senators like Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota, two of the nervous Democrats whose votes might be needed for his confirmation.

And knowing what a weak hand the greens hold in Congress, it's easy to see why climate activists are walking around with furrowed brows.

https://www.thenation.com/article/the-gops-attack-on-voting-rights-was-the-most-under-covered-story-of-2016/

2016 WI voter ID

There were 25 debates during the presidential primaries and general election and not a single question about the attack on voting rights, even though this was the first presidential election in 50 years without the full protections of the Voting Rights Act. Fourteen states had new voting restrictions in place for the first time in 2016—including crucial swing states like Wisconsin and Virginia—yet we heard nary a peep about it on Election Day except from outlets like The Nation. This was the biggest under-covered scandal of the 2016 campaign.

http://www.democracycorps.com/National-Surveys/broad-bi-partisan-consensus-supports-reforms-to-supreme-court/

carville greenberg

COAL EPA

http://www.motherjones.com/environment/2014/08/conservatives-typo-unravel-obama-climate-law-epa-coal

Conservatives Want to Wipe Out Coal Rules…Over a Typo

A federal appeals court took a red pen to Obamacare. The president's signature environmental achievement could be next.

Social Title:

Conservatives want to wipe out coal rules…over a typo.

This story [1] originally appeared onGrist [2] and is republished here as part of the Climate Desk [3] collaboration.

If you can't beat 'em, point out their typos.

That seems to be the lesson of the D.C. Circuit Court's recent decision in Halbig v. Sebelius, which could render millions of Americans ineligible for health insurance subsidies on the basis of some sloppy syntax in the Affordable Care Act. After surviving more than 50 repeal votes in the House, a Supreme Court challenge to its constitutionality, and a famously rocky online rollout, health-care reform may end up hobbled by a mere drafting error. And the anti-regulatory crowd wasted no time in launching its next AutoCorrect attack: A new suit [4] asks the D.C. Circuit to nix the president's biggest climate-change initiative—EPA's "Clean Power Plan"—due to a 25-year-old mistake in the text of the Clean Air Act.

But don't panic just yet. As others have pointed [5] out [6], Halbigis far from a done deal. A different federal appeals court, the Fourth Circuit, upheld the insurance subsidies on the same day the Halbig court invalidated them. If the full D.C. Circuit doesn't end up reversing its three-judge panel's initial decision (through a sort of mini-appeal known as en banc review), the Supreme Court will almost certainly step in to resolve the circuit split. In the meantime, no one loses her insurance.

The prospects for EPA's climate rule aren't so bleak either. First of all, the 12 state attorneys general who filed suit were a bit too quick on the spell-check trigger. Federal courts generally limit review of agency decisions to "final actions," and the Clean Power Plan is still in draft form. As a result, the current case will probably be dismissed as premature. That won't stop the state AGs from re-filing as soon as EPA doespublish a final rule, but even then, their victory will hardly be assured. Here's why.

The "Clean Power Plan" is the administration's catchy(ish) nickname for a set of restrictions on carbon dioxide emissions from power plants [7], which generate a full third of the nation's greenhouse gas pollution. EPA's authority to regulate these emissions derives from a little-used Clean Air Act provision called Section 111(d). The section has been around since 1970, but when a bipartisan majority of Congress overhauled the Clean Air Act back in 1990, it amended 111(d). Twice. The details are complicated (you can read more about them here [8]), but the upshot is simple: Under the language of an amendment that originated in the Senate, regulating power plants' carbon emissions is perfectly kosher; under the House's amendment, not so much.

Competing House and Senate amendments—doesn't Congress have an app for that? Yep, even back in the digital dark ages of 1990, there was software designed to identify overlapping or incompatible changes to statutory text. But the conference committee charged with reconciling the House and Senate bills didn't have time to run it. As a result, both 111(d) amendments ended up in the compromise bill that was passed by both chambers and signed by the first President Bush. Meaning that both versions are, in some sense, the law of the land.

A self-contradicting statute—doesn't the judiciary have an app for that? Sort of. Federal courts certainly have an established rule for dealing with vague or ambiguous laws. Under the Chevrondoctrine,if a statute does not "speak clearly" with respect to a particular issue, courts will defer to any reasonable interpretation offered by the executive agency charged with implementing the law. In this case, the EPA maintains that the Senate amendment is more consistent with the Clean Air Act's overall structure and purpose. If Chevron applies, that justification should pass muster.

The tough question is whether Chevronwill apply. It's hard to see how a court could find that the competing amendments to Section 111(d) "speak clearly." But are the amendments "ambiguous" in the Chevron sense, or are they something else altogether—say, nonsensical?

Plenty of legal experts have shared their views, but at the end of the day, the opinions that really matter will be those of nine black-robed individuals in Washington, D.C. Handily enough, five of the Big Nine previewed their positions in a recent, fractured decision about an immigration rule. In Scialabba v. Cuellar De Osorio, the Supreme Court was confronted not with two contradictory versions of a single statutory section, but with a single statutory section that contained two seemingly contradictory instructions. (Cut Congress some slack, you guys. Drafting laws is really hard.) Justice Kagan, writing for herself and Justices Ginsburg and Kennedy, called the statute "Janus-faced," concluded that its "internal tension ma[de] possible alternative reasonable constructions," and deferred to the Board of Immigration Appeals' interpretive choice. Chief Justice Roberts, writing for himself and Justice Scalia, disagreed that the two clauses were truly in conflict but, even more importantly, rejected the idea that Chevron was "a license for an agency to repair a statute that does not make sense." In Roberts' view, "Direct conflict is not ambiguity, and the resolution of such a conflict is not statutory construction but legislative choice."

The other four justices didn't weigh in on this particular question in Scialabba, so it's not clear whether Kagan's or Roberts' camp will carry a majority if and when litigation over the Clean Power Plan reaches the high court. But it's also not clear that the vote count will matter, because either way EPA should retain authority to regulate carbon emissions from power plants.

Come again? First, consider Justice Kagan's view. If her logic controls, the court will apply Chevron, defer to EPA's interpretation of Section 111(d), and affirm the agency's authority to regulate carbon emissions from power plants. A win for EPA and the president.

Alternatively, assume that Chief Justice Roberts gets the majority.The two amendments to Section 111(d) are almost undoubtedly in "direct conflict," so, in Roberts' view, EPA's interpretation doesn't warrant deference.Now what? Roberts' Scialabba opinion doesn't say what the court should substitute for Chevron in the case of a provision that's truly at war with itself. But if the chief justice believes that giving effect to only one of the two amendments represents a "legislative choice," the judicial branch has no more business picking a winner than EPA. (In fact, courts are even less suited than executive agencies to this sort of policy decision. Agencies are, at least, indirectly accountable to the people, because agency leaders serve at the pleasure of a democratically elected president.) If it's not possible to honor the House and Senate amendments simultaneously, the only remaining option is to throw out bothas invalid, in which case Section 111(d) would revert to its pre-1990 form.

That's the reason backers of the climate rule shouldn't panic: Under the earlier version of Section 111(d), EPA would still have authority to regulate carbon emissions from power plants. The agency still wins.

Oh, and if the current Congress doesn't like that result? Well, it remains free to share its preferred method for addressing climate change at any time. There's an app for that, too. It's called new legislation.

http://www.booktv.org/Program/15815/Uncertain+Justice+The+Roberts+Court+and+the+Constitution.aspx

"Uncertain Justice: The Roberts Court and the Constitution"

Laurence Tribe

prop 8 out, but http://www.huffingtonpost.com/2013/06/27/supreme-court-texas-voter-id_n_3509834.html

nyt long game, gets concessions from libs on marginal aspects, leveraged to overturn core later eg college admissions based on race: http://www.nytimes.com/2013/06/28/us/politics/roberts-plays-a-long-game.html?pagewanted=all&_r=0&pagewanted=print

sol gen wins70% usually, now 30% favors CoC; cf also newshour on pro biz, class action, small biz vs big

who rules:

SCOTUS 195- appointees reflect pres (tho some changes), but all in range of UpC acceptability, many corp lawyers, active in party, 5 of 9 millionaires

splits usually on social issues; more pro corp last 20 yrs

CoC has Nat'l Chamber Litigation Ctr (roberts was go-to corp lawyer 197

under b2 coc guy ~v refs head of osha (their legal arm got roberts and alito confirmed) 266

mentions vegetables (not broccoli by name) overturn commerce clause cd lead to many other progressive laws overturned cf kpfa news and letters 8.22.12 anti fedsoc org BO 1st erm he'll have fewer appointees than when started; title 9 chall right after olympics,also on math etc; env law chall under commerce and spending? ; caroline fredrickson pres Am Const soc http://www.acslaw.org/about/staff/fredrickson

Another way the wealthiest Americans have rigged the rules so more of the national income flows upward may be just as consequential, but less well understood. A 30-year campaign to push America's courts sharply to the right has borne abundant fruit for those in the top 1 percent.

We see it reflected in today's Supreme Court, which, having unleashed a flood of super-PAC cash into our political campaigns in a decision that was one of the most brazen examples of judicial activism in the court's history, now stands poised to overturn not only the Democrats' healthcare bill, but much of the jurisprudence that supported the welfare state developed since the New Deal.

A study by the Constitutional Accountability Center found that the Chamber of Commerce had won 65 percent of its cases heard by the court under Chief Justice John Roberts, compared to 56 percent under former Chief Justice William Rehnquist (1986-2005) and just 43 percent of the cases that came during the Burger court (1969-1986).

But that's only the beginning. “The Roberts Court,” wrote Slate's Dahlia Lithwick, is “slowly but surely... giving corporate America a handbook on how to engage in misconduct. In case after case, it seems big companies are being given the playbook on how to win even bigger the next time.”

Many of the court's rulings have overturned long-standing precedents. While conservatives constantly rail against judges "legislating from the bench," it is far more common for right-leaning jurists to engage in “judicial activism” than those of a liberal bent. That's what several studies have concluded. Media Matters offered a run-down of a couple of prominent ones:

A 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder showed that among Supreme Court justices at that time, those most frequently labeled "conservative" were among the most frequent practitioners of at least one brand of judicial activism -- the tendency to strike down statutes passed by Congress. Those most frequently labeled "liberal" were the least likely to strike down statutes passed by Congress.

A 2007 study published by University of Chicago law professor Thomas J. Miles and Cass R. Sunstein... used a different measurement of judicial activism: the tendency of judges to strike down decisions by federal regulatory agencies. Sunstein and Miles found that by this definition, the Supreme Court's "conservative" justices were the most likely to engage in "judicial activism" while the "liberal" justices were most likely to exercise "judicial restraint."

In a recent opinion, two federal appeals court judges suggested that all efforts to protect workers, consumers or the environment were unconstitutional, including regulatory efforts by the states. It's a radical view, but one that has gotten increasing traction in conservative legal circles. It is also the culmination of years of institutional investments by the corporate Right to advance what's come to be known as the “law and economics” movement, which analyzes legal rulings “costs” – essentially applying neoliberal economic logic to the field. Its advocates eschew the notion that human rights or economic fairness are inherently valuable factors for the law to consider.

The model has gained increasing influence in American courts, and that's no accident. In his book, The Rise of the Conservative Legal Movement: The Battle for Control of the Law, Johns Hopkins scholar Steven Teles writes that conservatives, reacting to what they viewed as liberal hegemony in the legal community of the 1960s, fought hard to shift the legal terrain rightward.

Spurred by their overlapping grievances, informed by an increasingly sophisticated of how to produce legal change, and coordinated by strategically shrewd group of patrons, conservatives began investing in a broad range activities designed to reverse their … organizational weaknesses. While similar kinds of organizational development were happening in other domains … in no other area was the process of strategic investment as prolonged, ambitious, complicated and successful as in the law.

In 1998, the Washington Post reported that “Federal judges are attending expenses-paid, five-day seminars on property rights and the environment at resorts in Montana, sessions underwritten by conservative foundations that are also funding a wave of litigation on those issues in the federal courts.”

Funding for the seminars, run by a group called the Foundation for Research on Economics and the Environment (FREE), also comes from foundations run by companies with a significant interest in property rights and environmental law issues.

One of the group's funders was the John M. Olin Foundation, which invested millions of dollars in the law and economic movement – endowing university chairs, funding think-tanks and providing early support for the Federalist Society, which was founded in 1982 by former attorney general Ed Meese, controversial Supreme Court nominee Robert Bork and Ted Olsen—who years later would win the infamous Bush v. Gorecase before the Supreme Court in 2000 and then go on to serve as Bush’s solicitor general. The foundation said in a 2003 report to its trustees, “All in all, the Federalist Society has been one of the best investments the foundation ever made.”

In 2005, the Olin Foundation actually declared “mission accomplished” and closed up shop. The New York Times reported that after “three decades financing the intellectual rise of the right,” the foundation’s services were no longer needed. The Times added that the loss of Olin wasn’t terribly troubling for the movement, because whereas “a generation ago just three or four major foundations operated on the Right, today’s conservatism has no shortage of institutions, donors or brio.”

If the economics and law movement were to become the standard in our legal culture, it would represent a massive upward redistribution of wealth. Not only would “transfer payments” – unemployment benefits, assistance for needy families and the like – be deemed unconstitutional, but so would minimum wages, job training programs, subsidized student loans and most of our already threadbare social safety net. And that environment will have been purchased for a princely sum by those who have profited so handsomely from America's spiraling income inequality.

Joshua Holland is an editor and senior writer at AlterNet. He is the author of The 15 Biggest Lies About the Economy: And Everything else the Right Doesn't Want You to Know About Taxes, Jobs and Corporate America.

see

Unequal Protection: How Corporations Became "…

by Thom Hartmann

cit united went from deciding if a small part of McC-F was unconstit, to whether the whole thing is?! actually id congress has any power in limiting corp "free speech" p 171 SC had upheld M-F 2003, and 20 yrs earlier Austin v MI C0C

http://en.wikipedia.org/wiki/John_G._Roberts

mostly corp law at Hogan & Hartson

cf toobin no more mr nice guy http://www.newyorker.com/reporting/2009/05/25/090525fa_fact_toobin

...

When Antonin Scalia joined the Court, in 1986, he brought a new gladiatorial spirit to oral arguments, and in subsequent years the Justices have often used their questions as much for campaign speeches as for requests for information. Roberts, though, has taken this practice to an extreme, and now, even more than the effervescent Scalia, it is the Chief Justice, with his slight Midwestern twang, who dominates the Court’s public sessions.

Roberts’s hard-edged performance at oral argument offers more than just a rhetorical contrast to the rendering of himself that he presented at his confirmation hearing. “Judges are like umpires,” Roberts said at the time. “Umpires don’t make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.” His jurisprudence as Chief Justice, Roberts said, would be characterized by “modesty and humility.” After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party....

From New York, Roberts moved to the Supreme Court, where he became a clerk for Associate Justice William H. Rehnquist, and it was in Washington that his political education began. Rehnquist, appointed by Richard Nixon in 1972, was, in his first decade as a Justice, almost a fringe right-wing figure on the Court, which was then dominated by William J. Brennan, Jr. But Ronald Reagan’s election to the Presidency, which took place just a few months into Roberts’s clerkship, lifted Rehnquist to power and, more broadly, gave flight to the conservative legal movement.

At that early stage of the Reagan era, conservatives had a problem, because there were no institutions where like-minded lawyers could be nurtured; the Federalist Society, the conservative legal group, was not founded until 1982. “Roberts got a lot of attention because he clerked for Rehnquist,” said Steven Teles, a professor of political science at Johns Hopkins and the author of “The Rise of the Conservative Legal Movement.” “Without the Federalist Society, there were not a lot of other ways for the Administration to make sure that they were getting true conservatives. The Rehnquist clerkship marked Roberts as someone who could be trusted.”

...

Before long, though, Roberts steered away from nostalgic reverie and into constitutional controversy. He maintained his relaxed and conversational cadence, but his words reflected a sharply partisan world view. “When Justice Rehnquist came onto the Court, I think it’s fair to say that the practice of constitutional law—how constitutional law was made—was more fluid and wide-ranging than it is today, more in the realm of political science,” Roberts said. “Now, over Justice Rehnquist’s time on the Court, the method of analysis and argument shifted to the more solid grounds of legal arguments—what are the texts of the statutes involved, what precedents control. Rehnquist, a student both of political science and the law, was significantly responsible for that seismic shift.” Rehnquist joined the Court toward the end of its liberal heyday—the era when the Justices expanded civil-rights protections for minorities, established new barriers between church and state, and, most famously, recognized a constitutional right to abortion for women. This period, in Roberts’s telling, was the bad old days.

These sentiments reflect a common view for conservatives like Roberts. “There really was a sense at the time among the lawyers in his Administration that Reagan had a mandate for comprehensive change in the nature of government,” Teles said. “They thought a lot of what the liberals had done in creating, say, affirmative action was simply interest-group politics and not really ‘law’ at all, and it was their job to restore professionalism to the legal profession in government.”

“I heard about John, and I immediately tried to hire him,” Charles Fried, the Harvard law professor who was Reagan’s second Solicitor General, said. Kenneth Starr, who was chief of staff to William French Smith, Reagan’s Attorney General, had hired Roberts as a special assistant to Smith. Roberts then went to work at the White House, as an associate counsel.

All the lawyers who worked for Reagan were, in some general sense, conservative, but there is a difference between those, like Roberts, who came of age during Reagan’s first term in office and those who prospered in his second. “The Department of Justice in the first term was full of serious, principled people,” Teles said. “They didn’t see themselves as part of the Christian right, or even necessarily part of a larger political movement, but they did think of themselves as real lawyers who were reacting to what they thought of as the excesses of liberalism.” They believed, Teles said, “in what they called judicial restraint and strict constructionism. Roberts comes out of this world.” Liberal critics, in turn, regard this view as unduly deferential to the status quo and thus a kind of abdication of the judicial role.

The legal philosophy of Edwin Meese III, which promoted an “originalist” view of the Constitution, dominated Reagan’s second term. Originalists, whose ranks now include Scalia and Thomas, believe that the Constitution should be interpreted in line with the intentions and beliefs of its framers. “John was not part of the Meese crowd,” one lawyer who worked with Roberts in the Reagan years said. “They cared more about a strict separation of powers, and even some limitations on executive and government power.”

Originalists and judicial-restraint conservatives generally reach similar conclusions on legal issues, but their reasoning differs. Both, for example, believe that the Constitution does not protect a woman’s right to abortion. “An originalist on abortion would say that at the time of the Constitution, or of the adoption of the Fourteenth Amendment, abortion was prohibited, and that’s it,” Akhil Reed Amar, a professor at Yale Law School, said. “A conservative like Roberts, on the other hand, wouldn’t look immediately at the question of whether all abortions should be outlawed, but examine the specific restriction on abortion rights at issue in the case and probably uphold it. He’d avoid the culture-war rhetoric and gradually begin cutting back on abortion rights without making lots of noise about getting rid of it altogether.” In 2007, Roberts joined Kennedy’s opinion that followed this approach in upholding a federal anti-abortion law. The Court’s two originalists, Scalia and Thomas, wrote a separate concurring opinion in that case, urging, as they had before, that Roe v. Wade be overturned once and for all.

In documents from the Reagan era that were made public during Roberts’s confirmation hearing, the young lawyer emerges as a loyal (and low-level) foot soldier in the Reagan revolution. On issues where there was disagreement within the Administration, Roberts’s memos generally show him supporting the more conservative position, especially on matters of race and civil rights. Roberts said that affirmative action required the “recruiting of inadequately prepared candidates,” and sought a narrow scope for Title IX, the law that mandates equal rights for men and women in educational settings. In 1981, Roberts wrote that a revision of the Voting Rights Act would “establish essentially a quota system for electoral politics by creating a right to proportional racial representation.” (Reagan signed the revision anyway.)

...

When George H. W. Bush won the Presidency, in 1988, his new Solicitor General, Kenneth Starr, hired Roberts again, this time as his principal deputy. Near the end of the first Bush’s term, Roberts was nominated to the United States Court of Appeals for the D.C. Circuit, but Democrats in the Senate, sensing a victory in the approaching 1992 election, refused to let him come up for a vote. So, for Bill Clinton’s eight years in office, Roberts went back to Hogan & Hartson, where, according to his financial-disclosure forms, he made more than a million dollars a year. In 1996,

...

Roberts took a direct role in the contested 2000 election, travelling to Tallahassee to assist George W. Bush’s legal team in the recount litigation. He was rewarded for his efforts the following year, when Bush, like his father before him, nominated Roberts to the D.C. Circuit. He was confirmed two years later, and he served there until Bush chose him for the Supreme Court.

Roberts’s career as a lawyer marked him in other ways as well. In private practice and in the first Bush Administration, a substantial portion of his work consisted of representing the interests of corporate defendants who were sued by individuals. For example, shortly before Roberts became a judge, he successfully argued in the Supreme Court that a woman who suffered from carpal-tunnel syndrome could not win a recovery from her employer, Toyota, under the Americans with Disabilities Act. Likewise, Roberts won a Supreme Court ruling that the family of a woman who died in a fire could not use the federal wrongful-death statute to sue the city of Tarrant, Alabama. In a rare loss in his thirty-nine arguments before the Court, Roberts failed to persuade the Justices to uphold a sixty-four-million-dollar fine against the United Mine Workers, which was imposed by a Virginia court after a strike.

One case that Roberts argued during his tenure in the Solicitor General’s office in George H. W. Bush’s Administration, Lujan v. National Wildlife Federation, seems to have had special resonance for him. The issue involved the legal doctrine known as “standing”—one of many subjects before the Supreme Court that appear to be just procedural in nature but are in fact freighted with political significance. “One of the distinctive things about American courts is that we have all these gatekeeper provisions that keep courts from getting involved in every single dispute,” Samuel Issacharoff, a professor at New York University School of Law, says. “The doctrine of standing says that you only want lawsuits to proceed if the plaintiffs are arguing about a real injury done to them, not simply that they want to be heard on a public-policy question.” Liberals and conservatives have been fighting over standing for decades. “Standing is a technical legal doctrine, but it is shorthand for whether courts have a role in policing the conduct of government,” Issacharoff says. “Typically, the public-interest advocates, usually on the liberal side of the spectrum, favor very loose standing doctrines, and people who want to protect government from scrutiny, who tend to be on the conservative side, want to require more and more specific standing requirements.”

...

On issues of Presidential power, Roberts has been to Scalia’s right—a position that’s in keeping with his roots in the Reagan Administration. “John was shaped by working at the White House, where you develop a mind-set of defending Presidential power,” the lawyer who worked with Roberts in the Reagan years said. Just a few days before Bush appointed Roberts to the Supreme Court, in 2005, Roberts joined an opinion on the D.C. Circuit in Hamdan v. Rumsfeld that upheld the Bush Administration’s position on the treatment of detainees at Guantánamo Bay. (With Roberts recused from the case, the Supreme Court overruled that decision in 2006, by a five-to-three vote, with Kennedy joining the liberals.) Scalia has occasionally shown a libertarian streak, but Roberts, true to his White House past, has consistently voted to uphold the prerogatives of the executive, especially the military, against the other branches.

http://www.newyorker.com/reporting/2009/05/25/090525fa_fact_toobin?printable=true

http://www.sourcewatch.org/index.php?title=John_G._Roberts,_Jr.

President George W. Bush nominated Roberts to be Supreme Court Chief Justice on September 5, 2005.

On the board of regents for the Smithsonian Institution.

Contents[hide]

2005 Supreme Court Nomination

John G. Roberts, Jr., considered by Fox News to be a conservative judge on the US Court of Appeals for the District of Columbia, was nominated July 19, 2005, by President George W. Bush as Associate Justice of the Supreme Court to replace retiring Justice Sandra Day O'Connor.

Aside from the usual wrangling and controversies attendant to such a partisan nomination to an important position, there is also developing a more serious, perhaps criminal (as if that mattered any more in Washington) situation described in the Roberts nomination scandal article:

The Washington Post and other news outlets are reporting that a file folder containing papers from Supreme Court judicial nominee John G. Roberts, Jr.'s work on affirmative action more than 20 years ago disappeared from the Ronald Reagan Presidential Library after its review by two lawyers from the White House and the Justice Department in July [2005]. [1]

"In another Roberts development, new details are emerging over a potentially serious conflict of interest. As we have reported previously on Democracy Now!, Judge Roberts was interviewing for a possible Supreme Court nomination at the same time he was presiding over a court case of great importance to the White House." [2]

Judicial Background

(reverse chronology needs technical corrections)

July 15, 2005, while interviewing for the Supreme Court, John Roberts ruled in support of the government appeal of lower court decision regarding military tribunals, enemy combatants, and the Geneva Conventions

The opinion says that Congress authorized the president to set up whatever military tribunal he deems appropriate when it authorized him to use "all necessary and appropriate force" to fight terrorism in response to 9/11. While the president has claimed the authority only to try foreign suspects before the tribunals, there's nothing in the Hamdan opinion that stops him from extending their reach to any other suspected terrorist, American citizens included. This amounts to a free hand—and one Bush is not shy about extending. The administration has already devised its own tribunals to review its claims that the Guantanamo detainees are all enemy combatants who are not entitled to the international protections accorded to prisoners of war. As of February, 558 hearings had resulted in freedom for only three prisoners. The Supreme Court has yet to rule on the legality of these tribunals—a question that Roberts may now help decide. [2]

nominated May 9, 2001, by President George W. Bush to the US Court of Appeals for District of Columbia Circuit, "to a seat vacated by James L. Buckley". The nomination was sent to the US Senate January 7, 2003, and confirmed by the Senate May 8, 2003. Roberts received commission on June 2, 2003. [3][4]

"President George H.W. Bush nominated Mr. Roberts to the D.C. Circuit, but he was considered by some on the Senate Judiciary Committee to be too extreme in his views, and his nomination lapsed. He was nominated by President George W. Bush to the same seat in May 2001." [5]

"former principal deputy solicitor general under Kenneth Starr." [6]

nominated by President George H.W. Bush but never received a Senate vote." However, during the George H.W. Bush administration (1989-1993), Roberts was the "principal deputy solicitor general ..., helping formulate the administration's position in Supreme Court cases." [7]

"As deputy solicitor general in 1990, he argued in favor of a government regulation that banned abortion-related counseling by federally funded family-planning programs. A line in his brief noted the Bush administration's belief that Roe v. Wade should be overruled. --*Washington Post*, Charles Lane, July 2, 2005

"On the D.C. Circuit, Roberts voted with two colleagues to uphold the arrest and detention of a 12-year-old girl for eating french fries on a Metro train, though his opinion noted, 'No one is very happy about the events that led to this litigation.' In another case, Roberts wrote a dissenting opinion that suggested Congress might lack the constitutional power to regulate the treatment of a certain species of wildlife."

"Roberts was nominated for the DC Circuit in 2001 and was blocked for two years in the Senate Judiciary Committee, finally getting voted out of committee in May 2003. His committee vote was strong (16-3), but not unanimous. The Senate confirmation was without a roll call vote.

"One has only to read the Alliance for Justice reports and press releases on Roberts to realize that, like almost any other Bush nominee, he would face a buzzsaw if nominated to the Supreme Court." --Jim Lindgren, May 24, 2005.

In 2001, "Critics point[ed] to Roberts' representation of big business and his role in cases attacking the ADA, affirmative action, and labor interests as possible causes for opposition." [8] Roll Call reported, "The lobbying resume of Supreme Court nominee John Roberts is longer than it initially seemed. Even before he lobbied the Office of Management and Budget on behalf of the Cosmetic, Toiletry and Fragrance Association, Roberts worked on behalf of two clients in the peanut industry" (Tory Newmyer and Kate Ackley, "K Street Files," Roll Call, July 25, 2005).

In 2003, Alliance for Justice said that "John Roberts’ legal career and professional writings reveal that he is out of the mainstream in his legal views in a number of areas, most prominently civil rights and the right to choose. His record as a member of the Bush and Reagan administrations reflects opposition to the rights of women and minorities, as well as a restrictive view of the proper role of federal courts in protecting the environment and the rights of criminal defendants. His comments about the Rehnquist Court reveal Roberts’ extremist ideology, a view confirmed by his membership in and connections to ultra-conservative legal groups.

"Mr. Roberts has been nominated to a federal court with tremendous influence. The Washington Times said of the nomination of Roberts (along with that of Miguel Estrada) to the D.C. Circuit that it, 'offer[s] business the best opportunity in years to free itself from government regulations ... A victory for conservatives on the appellate court could cut deeply into the aspirations of environmentalists, labor groups, and other social activists. They depend on federal regulations to carry out their advocacy efforts.'" [9]

Federalist Society

Judge Roberts has stated that he cannot recall ever having been a member of the Federalist Society. He sought and received published corrections from several major news organizations retracting earlier reports that he had been a member.^[10] On July 25, 2005, however, the Washington Post reported that John Roberts is listed in the Society's 1997–1998 leadership directory as serving on the Steering Committee of the Federalist Society. The same source also indicates the possibility that the individuals listed in the "leadership directory" are, in a technical sense, not necessarily "members" of the society, and no confirmable membership information is officially disclosed by the Society itself.

2000 presidential election

While an attorney at Hogan & Hartson, Roberts met with Florida Governor Jeb Bush and gave advice on the legal aspects of election disputes during the Florida recount of 2000.^[11] According to Ted Cruz, an advisor on Bush's 2000 campaign, Roberts helped polish some legal briefs and held a "moot court" session to prepare Bush's lawyers for arguments in Bush v. Palm Beach County Canvassing Board and Bush v. Gore.^[12]

Quotes

FromJeffrey Toobin, Too Close to Call : The Thirty-Six-Day Battle to Decide the 2000 Election, Random House, 2002 ISBN 0375761071:

"The president's first two nominations to the United States Court of Appeals for the District of Columbia curcuit --- generally regarded as the stepping-stone to the Supreme Court --- went to Miguel Estrada and John G. Roberts Jr., who had played important behind-the scenes roles in the Florida litigation."

"'He is well in the running, and he is superb,' says C. Boyden Gray, partner at Wilmer Cutler Pickering Hale and Dorr and chairman of the Committee for Justice, which fights for President George W. Bush's judicial nominees." *Legal Times*, February 22, 2005.

Profiles

According to his US Department of Justice biography:

"Mr. Roberts is the head of Hogan & Hartson’s Appellate Practice Group. He graduated from Harvard College, summa cum laude, in 1976, and received his law degree, magna cum laude, in 1979 from the Harvard Law School, where he was managing editor of the Harvard Law Review. Following graduation he clerked for Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit, and the following year for then-Associate Justice William H. Rehnquist.

"Following his clerkship experience, Mr. Roberts served as Special Assistant to United States Attorney General William French Smith. In 1982 President Reagan appointed Mr. Roberts to the White House Staff as Associate Counsel to the President, a position in which he served until joining Hogan & Hartson in 1986. Mr. Roberts’ responsibilities as Associate Counsel to the President included counseling on the President’s constitutional powers and responsibilities, as well as other legal issues affecting the executive branch.

"At Hogan & Hartson, Mr. Roberts developed a civil litigation practice, with an emphasis on appellate matters. He personally argued before the United States Supreme Court and the lower federal courts, participating in a wide variety of matters on behalf of corporate clients, trade associations, governments, and individuals.

"Mr. Roberts left the firm in 1989 to accept appointment as Principal Deputy Solicitor General of the United States, a position in which he served until returning to the firm in 1993. In that capacity he personally argued before the Supreme Court and the federal courts of appeals on behalf of the United States, and participated in formulating the litigation position of the government and determining when the government would appeal adverse decisions. Mr. Roberts had general substantive responsibility within the Office of the Solicitor General for cases arising from the Civil and Civil Rights Divisions of the Justice Department, as well as from a variety of independent agencies.

"Mr. Roberts has presented oral arguments before the Supreme Court in more than thirty cases, covering the full range of the Court’s jurisdiction, including admiralty, antitrust, arbitration, environmental law, First Amendment, health care law, Indian law, bankruptcy, tax, regulation of financial institutions, administrative law, labor law, federal jurisdiction and procedure, interstate commerce, civil rights, and criminal law.

"Mr. Roberts is a member of the American Law Institute and the American Academy of Appellate Lawyers, and has also received the Edmund J. Randolph Award for outstanding service to the Department of Justice. He is a member of the Bars of the District of Columbia, the United States Supreme Court, and various federal Courts of Appeals."

Distraction

As Joe at AMERICAblog commented, "This is a whole new ball game. And timed to distract us all from Katrina. ... Karl Rove strikes again." To the list of those things requiring distraction must be added House Majority Leader Thomas D. DeLay, who was indicted on September 28, 2005, Senate Majority Leader Bill Frist who is under investigation by the Securities and Exchange Commission for insider trading, and Rove himself, who is under investigation for his role in the outing of CIA operative Valerie Plame.

Impeachment brooks bros?

In the October 1, 2005, "Taking a Dive," "pessimist" of The Left Coaster compared photographs of Roberts and video stills of someone who could clearly be his double:

"The images were taken from video shot inside the Miami Dade County building when GOP activists, led by propagandist Jim Wilkinson (later the head of the Coalition Media Center in Doha during the war, and media at the 2004 GOP convention in New York), stormed the recount. They aimed to stop it with a disruptive protest, charging 'voter fraud.' They claimed, but could not prove, that the Miami election commissioners were stealing votes for Al Gore -- who most observers believe would have won the election if all the votes had been properly counted."

"If it can be shown that Roberts was in Florida assisting with the effort to illegally subvert the will of the people as expressed through voting, that would constitute an act of malfeasance, something necessary to impeach a sitting Supreme Court Justice. Then all we would need would be a Congress that was able to act on this," "pessimist" wrote. "Somehow, thanks to many factors, I suspect that this isn't going to be, and the American Experiment will have ended once and for all. ... I hope Red State America is proud of itself."

Related SourceWatch Resources

Bush's judicial nominees

External links

Profiles

John G. Roberts, Jr. in the dKosopedia.
John G. Roberts biography, Office of Legal Policy, US Department of Justice website.
John G. Roberts, Circuit Court Nominee Profile, National Council of Jewish Women, circa 2001/2003.
John G. Roberts, nominee to the Court of Appeals for the District of Columbia, Traditional Values Coalition, 2003.
Potential Nominee Profile--Judge John G. Roberts, Supreme Court Nomination Blog, June 8, 2005.

Data

Changes at the US Supreme Court: John G. Roberts. Timeline posted on New York Times website.
John G. Roberts' Federal Campaign Contributions (1993-2000) posted on NewsMeat.com website: $3,735 Republican; $7,450 special interest; total: $11,185.
2003 Financial Disclosure Form from Roberts' Senate confirmation to the Appeals Court; posted on CourtingInfluence.net website.
Questionnaire from Robert's Senate confirmation to the Appeals Court; posted on CourtingInfluence website.
NARAL, John G. Roberts, Nominated to the U. S. Court of Appeals for the District of Columbia, June 2001, and Fact Sheet (pdf), July 2005.

Judicial Records & Opposition

John G. Roberts, OYEZ. U.S. Supreme Court Multimedia, undated.
Report and Recommendations for the Project for the Independent Counsel Statute, Brookings Institution/American Enterprise Institute, May 1999. Committee members: Robert Dole and George J. Mitchell, Co-Chairs; Zoë Baird, Drew S. Days, III, Carla Anderson Hills, Bill Paxon, John G. Roberts, Jr., David E. Skaggs, Dick Thornburgh, and Mark H. Tuohey III.
"John G. Roberts, Jr.: U.S. Court of Appeals for the District of Columbia," Free Congress Foundation’s Judicial Selection Monitoring Project, June 8, 2001.
"Report of the Alliance for Justice: Opposition to the Confirmation of John G. Roberts to the U.S. Court of Appeals for the D.C. Circuit," Independent Judiciary, 2003. (14-page pdf).
Brian Fletcher, "Selected opinions by Judge Roberts," Supreme Court Nomination Blog, July 19, 2005.

Websites

*Supreme Court Nomination* Blog website.

Articles & Commentary

2001

"President Names Eleven Extraordinary Lawyers to the Federal Bench," United States Senate Republican Policy Committee, May 9, 2001.
"Who's Who Among the Bush Judicial Nominees, Part I," American Lawyer Media, May 14, 2001. Posted on Free Republic website.

2003

NARAL Pro-Choice America, Letter Opposing the Confirmation of John Roberts to the United States Court of Appeals for the District of Columbia, February 13, 2003.
"Panel Spars Over Roberts Nomination," Fox News, May 1, 2003.

ROBERTS, J Ch Justice

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‘A requiem for American democracy’: 5-4 Supreme Court vote rules partisan gerrymandering is ‘beyond the reach of the federal courts’

'Pure Conjecture'?

What This Could Mean for Future Rules

Judge Brett Kavanaugh and Climate Change

Conservatives Want to Wipe Out Coal Rules…Over a Typo

A federal appeals court took a red pen to Obamacare. The president's signature environmental achievement could be next.

2005 Supreme Court Nomination

Judicial Background

Federalist Society

2000 presidential election

Quotes

Profiles

Distraction

Impeachment brooks bros?

Related SourceWatch Resources

External links

Profiles

Data

Judicial Records & Opposition

Websites

Articles & Commentary

2001

2003

John G. Roberts, Jr.: External Links 2005

Attachments