The Roberts Court: The Struggle for the Constitution (37 page)

The race issue also stemmed from an appellate panel ruling in which Sotomayor participated. The case was the New Haven white firefighters’ challenge before it got to the Supreme Court. The panel, in a one-paragraph decision, affirmed the trial court’s ruling against the white firefighters, and she later voted against having the full appellate court review the panel’s decision. By the time she faced the senators, the Supreme Court had reversed her panel’s decision in
Ricci v. DeStefano
.

Republican committee members criticized her panel’s decision for spending only one paragraph on a case raising difficult and sensitive questions about job discrimination; but Sotomayor countered that the panel based its decision on a “very thoughtful, very thorough” 78-page opinion by the trial court. In reaching its own decision, the panel, she said, applied the law as it stood in her circuit, which allowed the city to discard the test results. The Supreme Court, she acknowledged, had now changed the law.

Sotomayor kept her composure even as committee Republicans brought into the hearings Frank Ricci and eleven other New Haven
firefighters in blue dress uniforms who took seats behind her witness table. But the GOP senators made little headway against her confirmation with that tactic. When Ricci later testified about how hard he worked to pass the promotion exam, he was asked by Democratic senator Arlen Specter of Pennsylvania: “Do you think Judge Sotomayor acted in anything other than good faith in trying to reach a fair decision in the case?” Ricci replied: “That’s beyond my legal expertise. I simply welcome an invitation by the United States Senate to come here today.”

Even before she went before the committee, much ink and airtime had been spent on the “wise Latina” comment. It became the basis of opponents’ claims that she would be an activist, even racist, justice. In her 2001 speech about how a judge’s ethnicity and gender may affect her judging, Sotomayor had questioned a statement by former Justice Sandra Day O’Connor that a wise old man and a wise old woman would reach the same decision in deciding cases. She said in her speech: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

To senators’ questions, she explained that the words were a “rhetorical flourish” that did not work. What she meant by them was that “Life experiences have to influence you,” she said. “We’re not robots who listen to evidence and don’t have feelings. We have to recognize those feelings, and put them aside.”
³

She repeated, almost like a mantra, that her judicial philosophy was “to apply the law to the facts,” a mantra that frustrated senators on both sides as well as outside groups and observers for how little it revealed of her approach to fundamental constitutional questions. In the end, however, there was little doubt that Sonia Sotomayor would take her place on the highest court in the land, and she would get there in time to sit during the reargument of
Citizens United
.

As Sotomayor endured the Senate ritual, lawyers for Citizens United and the federal government shifted to warp speed in the face of a brutal, Court-ordered schedule for filing briefs on the Court’s reargument
questions. Olson’s legal team had to cancel an Alaskan fishing trip in August because of the upcoming argument.

“When you know for sure the whole ball game is up for grabs, you take it very seriously,” said Ted Olson. “I suspect I spent every bit of time that I spent on the first argument, if not more, getting ready. Even if you think you’ve got the odds going in your direction because of the way the Court’s order read, it always could come out the other way and lots of things could happen.”

When a law passed by Congress is struck down or its constitutionality is at stake, the solicitor general of the United States personally takes on the defense. Solicitor General Elena Kagan, on the job just shy of four months, also prepared for the September 9 arguments. The
Citizens United
showdown would be the former Harvard Law dean’s first appellate argument in any court.

Perhaps because she was aware of her own lack of experience compared to the career deputies and line attorneys in her office, or perhaps because she has unshakable self-confidence, Kagan immediately became a hands-on solicitor general (or “SG,” as it is commonly known), who worked as hard if not harder than anyone in her office, according to lawyers there.

“She took one day off the entire time she was SG,” said one former attorney in the office. “She was in every weekend, every Saturday, every Sunday. She is an extremely demanding person and thinks everyone should work as hard as she works, and nobody frankly can. There isn’t another human being who can. She just lived it and breathed it.”

On her first day in office, the government had a reply brief due in a case. Kagan took the brief, which had been written by one of the office’s best writers, and turned it around the same day with more words of hers in it than of the original attorney, recalled the former attorney. “Those first few months were tough on some people,” he said. “It wasn’t that she was just rewriting briefs. She was just better. It’s shocking for people who believe law is about experience. She is really just such a good writer and strategist.”

Ted Olson, the Supreme Court veteran, had his routine for preparing an argument. Kagan now had to find her own. She turned for advice to her principal deputy, Neal Katyal, who, like Olson, prepares binders with every case cited in the briefs by the government and the other side. He reads the cases and takes notes. Kagan asked him to prepare the binders. They later began discussions about the issues and the shape of the argument. Kagan also followed the office’s two-moot-court rule. Her attorneys and attorneys from the Federal Election Commission held the two mock arguments in which she practiced her arguments. Afterwards, she brainstormed the issues with only the lawyers who had worked on the initial case.

The Court’s reargument order had ratcheted up the stakes in what had been essentially a narrow campaign finance challenge, and the implications of that order resounded in the media and the blogosphere. Forty-two amicus briefs attempting to persuade the justices to adopt their viewpoints were submitted to the Court by business, labor, good government groups, conservative, libertarian and liberal advocacy organizations, media outlets, members of Congress and states.

One amicus brief came from the Michigan Chamber of Commerce, which told the justices that the Court was wrong in 1990 in
Austin v. Michigan Chamber of Commerce
when it upheld the state ban on corporate independent expenditures, and the time had come to right that wrong. The chamber’s brief was written by the same lawyer who had argued and lost the case nineteen years earlier.

Like the District of Columbia gun challenge, the Michigan Chamber’s challenge back in 1990 stemmed from an entirely manufactured case in which the chamber’s vice president and its legal counsel chose to stretch the boundaries of campaign finance law. They decided to use the chamber’s general treasury funds to support a candidate in a 1985 special election. Although state law prohibited the use of those funds, they picked a candidate, drafted an ad supporting him to run in the
Grand Rapids Press
, and then went into federal court to get an injunction
against the law so they would not be charged with a felony for violating it.
⁴

The chamber was optimistic about its chances nearly twenty years ago because the Supreme Court, shortly after the landmark campaign finance decision in
Buckley v. Valeo
in 1976, had ruled in favor of corporate political speech in two cases. In the 1978
First National Bank of Boston v. Bellotti
, a 5–4 majority of the Burger Court struck down a Massachusetts law that banned corporations from spending money to influence a public referendum that did not concern the corporation’s business. The majority said the value of speech in terms of its ability to inform the public does not depend on its source. And in a 1986 decision,
FEC v. Massachusetts Citizens for Life
, the justices held that the Federal Election Campaign Act’s ban on corporate expenditures was unconstitutional as it applied to a narrowly defined type of non-profit corporation.

Dissenting in both cases was, surprisingly, conservative Justice William H. Rehnquist, who wrote in the 1986 case, “Congress expressed its judgment in [the federal law] that the threat posed by corporate political activity warrants a prophylactic measure applicable to all groups that organize in the corporate form. Our previous cases have expressed a reluctance to fine-tune such judgments; I would adhere to that counsel here.”

Despite those two rulings, when the chamber’s
Austin
case reached the Supreme Court, a 6–3 majority found support in its campaign finance decisions for upholding Michigan’s corporate spending ban. Justice Thurgood Marshall, writing for the majority, said Michigan’s regulation was aimed at a different type of corruption from the typical quid pro quo. It was aimed at “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”

He emphasized that “the mere fact that corporations may accumulate large amounts of wealth is not the justification for [the state law];
rather, the unique state-conferred corporate structure that facilitates the amassing of large treasuries warrants the limit on independent expenditures. Corporate wealth can unfairly influence elections when it is deployed in the form of independent expenditures, just as it can when it assumes the guise of political contributions.”

Kennedy wrote a dissenting opinion that was joined by Scalia and O’Connor, and Scalia also wrote a caustic dissent, insisting, as he still does today, that speech is speech and the more speech the better. O’Connor later would shift her position toward greater regulation of campaign finances and vote in 2003 to reaffirm Marshall’s decision in
Austin
. Kennedy, however, has remained steadfast in his position that the First Amendment and the Court’s decisions draw a line between campaign contributions and expenditures, and independent expenditures are entitled to more protection than campaign contributions.

In late July, as the government and Olson and his team continued their argument preparations, Olson received a phone call from Senate GOP leader Mitch McConnell of Kentucky. McConnell, who had filed an amicus brief supporting Citizens United, told Olson that he wanted his lawyer—the renowned First Amendment expert Floyd Abrams—to share Olson’s thirty minutes before the justices. Abrams had represented McConnell in the 2003
McConnell v. FEC
case. Olson told him that the decision had to come from David Bossie, head of Citizens United. Olson then called Bossie and said he needed every second of his thirty minutes and to not give any of it to McConnell. Within minutes, McConnell called Bossie and repeated his request. Bossie told him that he had to consult with Olson, but he was not inclined to give away any argument time. Bossie then called Olson and instructed him to call Abrams with Bossie’s decision against divided argument time.

A few days later, Abrams called Bossie and asked if he would object to McConnell filing a motion with the Court seeking argument time. Bossie said he could not stop him and Abrams filed the motion. Olson urged the Court to reject the motion, saying, “While Senator McConnell doubtless has familiarity with the case bearing his name, he does not
have any specific familiarity with the record of this case.” The government, on the other hand, had consented to participation in the argument on its side by a lawyer for Senators John McCain and Russell Feingold.

The Court ultimately resolved the squabble by granting ten extra minutes to Abrams and ten extra minutes on the government’s side to the lawyer for McCain and Feingold, former Clinton solicitor general Seth Waxman. The reargument was scheduled for eighty minutes—twenty more than the usual one hour.

Inside the Court, the changeover of clerks for the approaching new term had taken place, but the new clerks soon were consumed with old business:
Citizens United
. And the Court also was preparing for a new justice. On August 6, the Senate, after nearly twenty hours of debate, voted 68–31 to confirm Sonia Sotomayor. Only nine Republicans voted for her. Two days later, she took the judicial oath, which was administered by Chief Justice Roberts. On September 8, the Court held a ceremonial investiture ceremony in the courtroom where, as her mother, friends, pop star Ricky Martin, Vice President Joseph Biden, and others looked on, Sotomayor repeated the oath and took her seat at the far end of the justices’ bench. Shortly afterwards, escorted by Roberts, she took the traditional walk down the front steps of the building to the plaza, where a battery of press and their photographers stood behind a roped-off area for the usual photo op. With a final “Bye, guys,” she disappeared inside the marble halls of justice.

•  •  •

The next morning, September 9, the justices gathered again in the courtroom for the start of reargument in
Citizens United
and whether the justices should overrule the 1990
Austin
decision’s ban on corporate independent expenditures and the McCain-Feingold law’s prohibition on using corporate general treasury funds for electioneering communications.

Bossie and his wife had waited for seats in the public line outside the Court, but once inside, they were seated in the front of the public
section. The courtroom was packed with visitors, including some members of Congress and many leaders of campaign finance reform groups and opposing groups. Directly across from Bossie, about ten to fifteen feet away, sat the two authors of the McCain-Feingold law.

The solicitor general has her own office in the Court as well as in the Justice Department. The court office was under renovation that morning, as was the lawyers’ lounge. All of the lawyers in the case ended up sharing space in the clerk’s office on the ground level of the building. Although it was Kagan’s first argument, she showed no trace of nerves or anxiety. Instead, she spent the waiting time cracking silly jokes for the captive audience.