Oh, this is entertaining, in a nasty-fun sort of way. It’s an accounting of the way that Citizens United went down, and you can almost hear Jeffrey Toobin’s teeth grinding over every word. If this account is correct, what happened was the combination of a truly awful oral argument and a favorable pro-reform opinion coming from perennial swing vote Anthony Kennedy; Chief Justice John Roberts took advantage of the latter to assign Kennedy the job of writing the majority opinion, thus ensuring that several decades’ worth of onerous free speech restrictions got gut-shot and left to die at the side of the road*.
At this point, soon-to-retire Justice David Souter got his nose out of joint on the subject and decided to effectively flip off the Court on his way out the door; having been assigned the minority opinion, Souter was prepared to snipe at the majority in his dissent. Roberts then demonstrated why George W Bush had made a good call by making him Chief Justice:
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.
More here. Anyway, I don’t know what’s funnier: that Roberts mousetrapped Souter so easily in this, or that a whole slew of Lefty commentators are going to stew about what happened FOREVER. Actually, no, wait, there’s something even funnier about this: watching the Left pretend that they aren’t upset that Senators Tom Carper and Bill Nelson of Florida – both of whom are up for re-election this year – also both voted to confirm John Roberts. Which, of course, the Left will end up doing: principles are all very well, but naturally the electoral needs of Democratic Senators – who are real people, using the metrics of the Democratic party – supersede the hurt feelings of Democratic activists. Besides, I am given to understand, by agents of the Democratic Establishment, that their ‘netroots’ don’t really feel pain the way the rest of us do. Normally I’d just assume that this was just self-serving agitprop excusing said Establishment’s awful behavior, but I am forced to admit that there’s some anecdotal evidence supporting their position…
PS: What? No. Make me care that Roberts shut down Souter. Heck, speaking as a free speech enthusiast I conclude that Souter deserved to be shut down. And while my opinion is relevant, I have yet to see any evidence that the opinion of those who disagree with me is relevant, too…
*Don’t like that interpretation? Suffer.