The Secret History of Citizens United: Why Should Anyone Care?
In a recent issue of the New Yorker, Jeffrey Toobin has published a breathless indictment of Chief Justice John Roberts for setting up Citizens United v. Federal Election Commission into a large constitutional case when by all rights it should have been a modest statutory endeavor. His article brought forth quick responses from Left and Right, by Tom Goldstein on SCOTUS blog and Adam J. White in the Weekly Standard and both to the effect that from the time that reargument was ordered, the case was perceived on all sides as a watershed argument before the Supreme Court.
The simple fact that the case was reargued shows that it had to be an important case, for that honor is not easily awarded to simple cases that can be decided on narrow grounds. And the charge that Chief Justice Roberts somehow “orchestrated”, in Toobin’s words, the entire episode is an unwarranted criticism not only of Roberts but of his other eight colleagues, each of whom had something to contribute to the matter. What is most unhappy about this bit of Toobin reportage is that it is long on supposed palace intrigue and short on serious argument about the supposed demerits of the decision.
On this issue, the right way to think about the question is to go the opposite direction. Hold Justice Anthony Kennedy accountable for his decision, and do the same for the concurrences of Chief Justice Roberts and Justice Antonin Scalia, and likewise for the partial concurrences and dissents of Justices John Paul Stevens and Clarence Thomas. These opinions are rich in nuance and argument. Passions are high, but public opinion is not always fully informed. The last thing that we need now is an effort to delegitimize the decision by a thinly veiled argument of illicit judicial intrigue. Chief Justice Roberts and all other eight Justices deserve better. If Toobin wants us to think of Citizens United as a latter-day Bush v. Gore, he should start by making his case on the merits.