Supreme Court Memo

January 23, 2010
Supreme Court Memo
Justices Turn Minor Movie Case Into a Blockbuster
By ADAM LIPTAK

WASHINGTON — So much for judicial minimalism.

Thursday’s big campaign finance decision, arguably the most significant of the Roberts court, showed just how bold that court can be. The majority converted a minor and quirky case about a movie almost nobody had seen into a judicial blockbuster.

“Essentially,” Justice John Paul Stevens wrote for the dissenters in the 5-to-4 decision, “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.”

Justice Stevens certainly disagreed with the substance of the majority opinion from Justice Anthony M. Kennedy, which said corporations have a First Amendment right to spend money to support or oppose political candidates.

But much of Justice Stevens’s 90-page dissent was devoted to complaints about how the majority got to that result. Those points drew a defensive and defiant concurrence from Chief Justice John G. Roberts Jr.

The chief justice’s decision to respond separately indicated that “he felt the sting of Stevens’s dissent,” said Heather Gerken, a law professor at Yale.

The dialogue between the two justices about how the court conducts its business revealed the depth of the divisions on the court and the jurisprudential juggernaut that the Roberts court may be in the process of becoming.

Pamela S. Karlan, a law professor at Stanford, said Thursday’s decision, Citizens United v. Federal Election Commission, was a telling indicator of the direction of the court.

“This is a deeply divided court with a strong pro-corporate wing,” Professor Karlan said, pointing also to a 2008 decision slashing the punitive damages award in the Exxon Valdez oil spill of 1989.

That is a big shift, she said, from the sort of conservatism espoused by the Rehnquist court. Chief Justice William H. Rehnquist, who died in 2005, “was not someone who thought corporations had strong rights claims,” Professor Karlan said.

Justice Stevens’s bill of particulars on Thursday had three major elements. He said the court had reached out to decide questions not properly before it, had issued a needlessly broad ruling when narrower grounds were available and had failed to show due respect for precedent.

The court certainly surprised the parties last June, when it set down the case, first argued in March, for a second argument in September during the court’s summer break. It asked the parties to submit additional briefs on whether two major precedents should be overruled.

Even so, it would not have been hard for the court to rule narrowly in favor of the filmmakers.

It could have said, for instance, that the campaign finance laws were not meant to reach 90-minute documentaries like the one at issue in the case, “Hillary: The Movie.” Or it could have said that Citizens United, the nonprofit advocacy corporation that made the documentary, was not the sort of group the laws were meant to cover.

“There were principled, narrower paths that a court that was serious about judicial restraint could have taken,” Justice Stevens wrote. Put slightly differently, the courtly Justice Stevens was accusing his colleagues of judicial activism.

Chief Justice Roberts agreed that the court should rely on narrow grounds when it can. “Indeed,” he said, “that is precisely the approach this court took” in June in a major voting rights case, “when eight members of the court agreed to decide the case on statutory grounds instead of reaching the appellant’s broader argument.”

The breadth of Thursday’s decision, the chief justice said, was a consequence of “the absence of any valid narrower ground.” He added: “We cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.”

As for respect for precedent — lawyers call it “stare decisis,” Latin for “to stand by things decided” — Justice Stevens said he was not an absolutist. “But if this principle is to do any meaningful work in supporting the rule of law,” he said, “it must at least demand a significant justification, beyond the preferences of five justices, for overturning settled doctrine.”

At his confirmation hearings in 2005, Chief Justice Roberts, then an appeals court judge, said “adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability.”

“It is a jolt to the legal system when you overrule a precedent,” he said. But he added that adherence to precedent was not an “inexorable command” and that unworkable decisions may be revisited.

That is what happened Thursday, said Samuel Issacharoff, a law professor at New York University. “Roberts has the better of the debate,” Professor Issacharoff said. The main decision overruled by the court, Austin v. Michigan Chamber of Commerce, was a much-questioned outlier, he said, and the court had a duty to clarify the law.

In his concurrence Thursday, Chief Justice Roberts said respect for precedent must have limits. Otherwise, he wrote, “segregation would be legal, minimum-wage laws would be unconstitutional and the government could wiretap ordinary criminal suspects without first obtaining warrants.”

The Citizens United decision has only a few rivals as the most significant one of the Roberts court. Two others come to mind: District of Columbia v. Heller, the 2008 decision finding for the first time an individual right to bear arms, and Parents Involved v. Seattle, a 2007 decision that limited the ability of public school systems to take account of race to promote integration.

Like Citizens United, Heller and Parents Involved were 5-to-4 decisions breaking along the usual ideological fault lines. All three took bold steps, and all three had Chief Justice Roberts in the majority.