The Oath (29 page)

At its heart,
Citizens United
was a case about Republicans versus Democrats. Since the Progressive era, Republicans had been the party of moneyed interests in the United States. For more than a century, Republicans had fought virtually every limitation on corporate or individual participation in elections. Democrats supported these restrictions. It was a defining difference between the parties. So, as the chief justice chose how broadly to change the law in this area, the real question for him was how much he wanted to help the Republican Party. Roberts’s choice was: a lot.

THE NINETY-PAGE SWAN SONG OF JOHN PAUL STEVENS

R
oberts assigned the opinion in
Citizens United
to Anthony Kennedy. It was another brilliant strategic move by the chief. Alito’s replacement of O’Connor in 2006 had locked the Court into a consistent 4–4 conservative-liberal split and left Kennedy the most powerful justice in decades. On controversial issues—including abortion, affirmative action, civil rights, the death penalty, federal power, among others—Kennedy controlled the outcome of cases. For the previous fifteen years or so, O’Connor had most often held the swing vote, though she never controlled as many cases as Kennedy did.

There was a striking difference in the way that O’Connor and Kennedy handled their roles as the swing vote. O’Connor was a gradualist, a compromiser, a politician who liked to make each side feel like it won something. When O’Connor was in the middle in a case, she would, in effect, give one side 51 percent and the other 49. In
Casey
, she saved abortion rights; in
Grutter
, she preserved racial preferences in admissions for the University of Michigan Law School; in
Hamdi
, she repudiated the Bush administration’s lawless approach to the detainees held at Guantánamo Bay. In each of these cases, as the author of or contributor to the opinions, O’Connor split the difference. Yes to restrictions on abortion but no to outright bans; yes to affirmative action but no to quotas; yes to the right of detainees to go to court but no to the full constitutional rights of American citizens. In describing her judicial philosophy, O’Connor liked to point to the sculpted turtles that formed the base of the lampposts outside the Supreme Court. “We’re like those turtles,” she liked to say. “We’re slow and steady. We don’t move too fast in any direction.”

Anthony Kennedy was no turtle. Unlike O’Connor, he tended to swing wildly in one way or the other. When he was with the liberals, he could be very liberal. His opinion in
Lawrence v. Texas
, the 2003 decision striking down laws against consensual sodomy, contains a lyrical celebration of the rights of gay people. Similarly, in
Boumediene v. Bush
, the 2008 case about the rights of accused terrorists, he excoriated the Bush administration and the Congress. “To hold that the political branches may switch the constitution on or off at will would lead to a regime in which they, not this court, say ‘what the law is,’ ” he wrote, quoting Chief Justice John Marshall’s famous words from 1803 in
Marbury v. Madison
. No one relished saying “what the law is” more than Kennedy.

But in his conservative mode, Kennedy could be shockingly dismissive of women’s autonomy, as in
Gonzales v. Carhart
, the 2007 late-term abortion law case. He also wrote the most notorious sentence in the majority opinion in
Bush v. Gore
, acknowledging that the Court acted for the sole benefit of George W. Bush: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Kennedy was not a moderate but an extremist—of varied enthusiasms.

All of the justices knew that Kennedy’s views were most extreme when it came to the First Amendment. (Independently, several different justices would say Kennedy had “a thing” about the First Amendment.) In the Roberts Court, there was a broad consensus about protecting freedom of speech. Many areas of the law that had once been controversial, such as the suppression of dangerous or unpopular views, were resolved with little disagreement. Even in a legal system that protects free speech, though, the government had long been able to regulate speech in all kinds of ways. Copyright infringement was subject to civil and criminal remedies; extortion and other verbal crimes were routinely punished. Campaign contributions, if they were considered “speech” at all, had been regulated for more than a century.

But Kennedy had an almost Pavlovian receptivity to arguments that the government had unduly restricted freedom of speech—especially in the area of campaign finance. Throughout his long tenure, Kennedy had dissented, often in strident terms, when his colleagues upheld regulations in that area. And as the possessor of probably the biggest ego on the Court (always a hotly contested designation among the justices), Kennedy loved writing high-profile opinions.

Roberts knew just what he would get when he assigned
Citizens United
to Kennedy. After all, Kennedy had written an opinion for the Court after the case was argued the first time. During his confirmation hearing, Roberts made much of his judicial modesty, his respect for precedent, saying that he was just an umpire on the playing field of the law. If the chief had written
Citizens United
, he would have been criticized for hypocrisy. But by giving the opinion to Kennedy, Roberts sidestepped the attacks and still achieved the far-reaching result he wanted.

Kennedy did not disappoint him. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people,” he wrote for the Court in his familiar rolling cadence. “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” These rhetorical flights were a long way from the gritty business of raising and spending campaign money.

Kennedy often saw First Amendment issues in terms of abstractions. At its core,
Citizens United
concerned a law that set aside a brief period of time (shortly before elections) when corporations could not fund political commercials. To Kennedy, this was nothing more than censorship: “By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.”

Citizens United
was a simple case for Kennedy. “The Court has recognized that First Amendment protection extends to corporations,” he wrote. This had been true since 1886, and speech, especially political speech, could never be impeded. “The censorship we now confront is vast in its reach,” Kennedy continued. “The Government has muffled the voices that best represent the most significant segments of the economy. And the electorate has been deprived of information, knowledge and opinion vital to its function. By suppressing the speech of manifold corporations, both for-profit and nonprofit, the Government prevents
their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests.

“If the First Amendment has any force,” Kennedy concluded, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

McCain-Feingold and several Supreme Court precedents had to be overruled. The Constitution required that all corporations, for-profit and nonprofit alike, be allowed to spend as much as they wanted, any time they wanted, in support of the candidates of their choosing.

To John Paul Stevens, however,
Citizens United
was much more complicated, with immense implications for American politics.

Stevens would turn ninety shortly after the
Citizens United
decision came down. Better than most justices, he knew the potential cost of staying too long on the bench.

Franklin Roosevelt named William O. Douglas to the Court in 1939, and he served with cantankerous brilliance well into a fourth decade. In 1974, however, Douglas had a stroke, and he became physically and mentally disabled. Douglas refused to retire, and his colleagues had to wage an awkward campaign to persuade him to bow to the inevitable. When Douglas did finally leave the Court the following year, Gerald Ford appointed Stevens to take his place. Stevens wanted to avoid a similarly unseemly end to his own career and deputized his closest friend among the justices, David Souter, to let him know when it was time to go. It seemed like a reasonable plan. After all, Souter was nearly two decades younger than the man known to all at the Court as JPS.

But then Stevens outlasted Souter. JPS was a remarkable physical specimen. He still played tennis on many mornings. (A frequent golfer, too, he practiced putting on the carpet in his chambers.) For more than twenty years, Stevens and his wife had spent a good deal of time at their condominium in Fort Lauderdale, but he remained deeply engaged in the work of the Court. During the eighties, Stevens was nicknamed the FedEx justice, because he did so much work from Florida; later, he used e-mail. By the new millennium, Stevens’s age, and his genial bearing, had earned widespread affection. Stevens had a midwesterner’s inveterate politeness, which manifested itself during oral arguments. He would begin speaking by saying, “May I ask you a question?” or “May
I ask you this?” Frequent advocates found this tic amusing and endearing, a little like his inevitable bow tie.

In light of all this, it was possible, by the time of
Citizens United
, to think of Stevens as a kind of docile old uncle. After all, he was thirteen years older than Ginsburg, his closest contemporary, and he belonged to an entirely different generation than the rest of the Court. (Sotomayor was almost
two
generations younger than Stevens.) But Stevens was no harmless codger. He was, rather, a ferocious competitor who hated to lose. Life made him a tough combatant.

In the early part of the twentieth century, the Stevenses were prominent citizens of Chicago. The justice’s grandfather James Stevens had gone into the insurance business, and, with the profits, he and his sons Ernest and Raymond bought land on South Michigan Avenue, where they built what was then the biggest hotel in the world, with three thousand rooms. The Stevens Hotel opened in 1927 and featured a range of luxurious services, including a bowling alley and a pitch-and-putt golf course on the roof. There was a big, stylized “S” over the main entrance.

The Depression hit the family hard. As chronicled in
John Paul Stevens: An Independent Life
, a biography by Bill Barnhart and Gene Schlickman, questions arose as to whether the Stevens family had
embezzled funds from the insurance company to prop up the hotel. In January 1933, the
Chicago Herald-Examiner
reported, “The Stevens children were sent to bed so they could not see their father arrested.” After Ernest Stevens was released on bail, according to the biography, four men brandishing a submachine gun, two shotguns, and a revolver ransacked the Stevens home in search of cash. Ernest and his wife, Elizabeth, and two of their children, William, age fifteen, and John, age twelve, as well as the family cook and two maids, were herded upstairs and held in a bedroom after
one of the boys was forced to open a safe in the first-floor library. It remains unclear whether the intruders were police officers or gangsters (or both), but they found no secret stash of cash.

Later in 1933, the patriarch, James, had a debilitating stroke. A few days afterward, John’s uncle Raymond committed suicide rather than endure the disgrace of a criminal prosecution. Ernest Stevens thus had to go to trial alone, and in the toxic environment of the Depression he was swiftly convicted. He faced ten years in state prison. Deliverance came in 1934, when his appeal reached the Illinois Supreme Court and the justices unanimously reversed his conviction. “In this whole record there is not a scintilla of evidence of any concealment or fraud
attempted,” the decision said. Still, the family never recovered its former wealth, and it lost control of the hotel. (It is now known as the Chicago Hilton and Towers; the “S” is still there.)

John Stevens rallied from the trauma of his teenage years and excelled at the Lab School of the University of Chicago. (Sasha and Malia Obama would later be students there, and the Obamas lived about a mile away from where Stevens grew up, on the city’s South Side.) In 1937, he enrolled at the university, where he was the editor of the newspaper, a stalwart of the tennis team, the head class marshal, and a member of Phi Beta Kappa. Toward the end of his undergraduate career, the dean of students, Leon P. Smith, rather mysteriously suggested that he take a correspondence course. Stevens did. He later learned that Smith was an undercover naval officer who had been asked to see if he could get students interested in cryptography. At the end of November of 1941, the navy sent Stevens a letter saying that he had completed enough of the course that he was eligible to apply for a commission. Stevens enlisted the day before Pearl Harbor and spent most of the war at that navy base in Hawaii, analyzing intercepted Japanese radio transmissions.