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.
Continue reading #rsrh Chief Justice Roberts used Citizen’s United to give Souter a SPECIAL send-off.
