After making us wait for months, the Supreme Court did exactly what almost all observers predicted, ruling in a 5-4 split decision that corporations can spend as much money as they want in political campaigns. Not surprisingly, the opinion got a lot of news coverage, and, more surprising, a visible reaction from Justice Alito when President Obama lambasted the opinion during the State of the Union speech. (Frank Rich of the New York Times referred to Alito’s “delicate sensibilities.”)
2010 State of the Union Message
Speculating about what the Court does behind its closed doors is like metaphysical conjecture: Nobody knows for sure.
But, like metaphysical speculation, it can be fun to guess. For instance, why did the Chief Justice, Justice Thomas, and Justice Scalia feel a need to write separately, adding pages and pages to Justice Kennedy’s already long majority opinion? The answer almost certainly lies in their knowledge that the majority opinion is a breathtaking exercise in judicial activism. These are the justices who falsely proclaim their judicial modesty, but in this case go far out of their way to decide the constitutional issue on the broadest basis possible.
To summarize, they wrote, “We had to decide this case as broadly as possible because we had to.” And, yes, that is a tautology. On the merits, the majority said, “Money is speech, corporations are people; therefore, corporate money gets First Amendment protection.” Seriously. That is the Readers’ Digest version of the holding. (I don’t know why they don’t put me on the Court. I don’t use nearly as many words to get to a result. “Omit needless words,” said Professor Strunk.)
Justice O'Connor
And the only member of the majority who chose not to write, Justice Alito, was the one visibly offended when the President took the Court to task for upending American political campaigns. In the realm of fascinating speculation must go, “What does Sandra Day O’Connor think of her replacement (Alito) and does she regret resigning from the Court?” I’m guessing the answers are, “not much” and “yes.”
Less speculation is required about the dissent. As the senior member of the dissenting minority, Justice Stevens assigned the writing of the dissent to himself. He probably will retire at the end of this Term and the dissent may be the last opinion on a major issue that Stevens writes. Moreover, he clearly has the better legal argument, so knows that his opinion will one day — when good political sense again commands a majority of the Court — be the law of the land. Dissenting opinions are often written for the future, the author assuming that his view will prevail eventually.
Justice Stevens was more persuasive than Justice Kennedy for another reason: None of the dissenters felt a need to write separately. In that regard, Stevens is better than Chief Justice Roberts at keeping his troops in line.
Being Chief Justice is like herding cats. Unless you are a Border Collie, there is little hope. We haven’t really had a Chief Justice since Earl Warren who was much good at it. In fact, the Chief Justice gave us a clue about the frustrations of the job recently. During an oral argument this month, Solicitor General Elena Kagan inadvertently called Justice Scalia, “Mr. Chief Justice.” She immediately caught the mistake and said to Scalia, “I didn’t mean to promote you.” The Chief Justice jumped in, “I’m glad someone thinks of it as a promotion.” I imagine he’s having a hard time with his brethren.
He needs some Border Collies.
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For a thoughtful, serious analysis of the President’s words about the opinion and Justice Alito’s response, look at this from SCOTUSblog. Here is the opinion itself, all 183 pages of it.
The Golden State 