by Marcia Coyle
Caperton, represented by Olson, appealed to the U.S. Supreme Court.7 During his argument to the Court, Olson told the justices that the Constitution’s guarantee of due process required a fair trial in a fair tribunal. Fairness means not only the absence of actual bias, he added, but the absence of the appearance of bias, the probability of bias, or the likelihood of bias. West Virginia’s Justice Benjamin should have stepped aside from Blankenship’s appeal because of the probability of bias.
Scalia, Roberts, Kennedy, and others pushed Olson hard for a concrete standard or test for judges’ recusals in these situations and questioned whether the issue should be left to the states to handle through their campaign finance laws instead of creating a constitutional standard.
“You really have no test other than probability of bias,” said Scalia. “We can’t run a system on such a vague standard.”
Olson countered, “The circumstance in this case involves the appearance of judges being bought.” The Court has repeatedly said actual bias, he added, is impossible to prove. “That’s why the appearance of probability of bias is so important to the respect that we need to have for the judicial system.”
Scalia, openly hostile to restrictions on money in elections, surprisingly suggested that state limits on spending and contributions to political committees could solve the due process problem. And Roberts wondered if that approach would “constitutionalize McCain-Feingold at the state level.”
The case was not about the First Amendment or McCain-Feingold, which figured in Citizens United’s appeal, but it was about independent campaign expenditures and the appearance of corruption, or more specifically, bias. Just how the Roberts Court answered the constitutional question, thought those watching it closely, could shed light on what the justices might do in Citizens United.
Olson had less than a month between his argument in Caperton and the arguments in Citizens United, but he again was no stranger to campaign finance law, having led the government’s defense of McCain-Feingold in the McConnell challenge six years earlier. His interest in that area of the law actually began in the late 1960s when, as a young lawyer, he started getting involved in politics. William French Smith, the senior partner at Olson’s law firm and later President Ronald Reagan’s first attorney general, would send Olson out to give speeches for Republican candidates.
“It was a whole lot simpler back then,” recalled Olson. “Campaign finance is fundamental to how we elect people today. You have this tension between people who want good government and don’t like elections being overwhelmed by money. On the other hand, I believe you’ve got to let the process work. If there is any reason for the First Amendment at all, it isn’t about protecting naked dancers but protection for talking about government and who shall lead this country.”
Citizens United’s case was particularly interesting to him, he added, because it involved the First Amendment and corporations.
Like many lawyers who appear regularly in the Supreme Court, Olson had a routine for getting ready for arguments. He collected binders of all of the relevant cases and binders for the briefs, with a set at his office and a set at his home. He read everything in the binders, took notes in longhand, and prepared a list of questions. Three other lawyers from his firm—part of Olson’s team—did the same.
“I had some of the younger lawyers prepare an analysis of each of the justices based on how they might come out, from most likely to least likely to vote for us, and in several pages on how they came to that conclusion,” said Olson. “I ultimately have thirty pages of analysis so I can focus on each of [the justices].” And as with all of his Supreme Court cases, he did two to three mock “moot” court arguments to get ready.
On the government’s side, Deputy Solicitor General Malcolm Stewart, a former clerk to Justice Harry Blackmun, was handling the argument in defense of the law’s corporate financing ban. Stewart, a career attorney in the Office of the Solicitor General, had been promoted to deputy from assistant to the solicitor general shortly before the term began. He had been in the office for sixteen years, twice had received one of the Justice Department’s highest honors, and often had argued complex regulatory cases, such as issues involving taxes and the environment. There are four deputies—three career attorneys and one political appointee—and seventeen assistants who appear before the Supreme Court and federal appellate courts. They are generally viewed by other lawyers as the crème de la crème of government attorneys.
The office has a two-moot-court rule for its lawyers, which was part of Stewart’s own preparation for the Citizens United arguments.
The justices also geared up for the arguments, and their routine, not surprisingly, varied by each chamber. Besides mastering the arguments in the briefs and the lower court’s decision, the justices are aided by their clerks. Some justices require bench memos about the cases. Ginsburg’s clerks typically prepared long memos, but Scalia asked for a maximum of two pages, 14-point font, and the clerk’s personal decision on the case. Justice Sonia Sotomayor, who would join the Court later in 2009, required rigorous, detailed memos with a table of contents. Other justices preferred an informal conversation with their clerks. Regardless of their routine, the justices on this Court are exceptionally well prepared and primed for verbal battle with the lawyers before them.
Citizens United’s case was the only argument scheduled for the morning of March 24. Bossie, his wife, and Boos took seats in the courtroom about a half hour before the 10 am start time. The courtroom seemed small, thought Bossie as he waited, but as he gazed at the nine empty chairs of the justices and the ornate ceiling which told the history of law, he began to feel overwhelmed by the seriousness of what was about to take place. Olson sat at the lawyers’ table in front of the justices’ bench and to the left of the lectern that separated the two sides in the case. Stewart, dressed in the formal gray morning coat worn for decades by members of the Office of the Solicitor General, and his colleagues sat to the right of the lectern, the official seat of the government.
After the traditional “Oyez, Oyez” call by the Court’s marshal, the justices took their seats and Olson began his argument. In a conversational yet firm tone, Olson told the justices that a ninety-minute documentary, like Hillary: The Movie, was not what Congress intended to prohibit in the McCain-Feingold law.
Congress was going after “short, punchy” advertisements that viewers have no choice in seeing, he argued. A ninety-minute documentary offered by a small, ideological corporation to people who choose to view it does not pose any threat of quid pro quo corruption or its appearance. And, he stressed, this movie was not the “functional equivalent of express advocacy,” the test for regulation of electioneering communications. Instead, the movie was a long discussion of the record of a public figure—qualifications, history, and conduct—who was running for office.
Three justices—Souter, Breyer, and Ginsburg—pushed back at Olson’s characterization of the movie. Souter, quoting the movie and its ads, read in his distinctive New England accent: She will lie about anything. She is deceitful. She is ruthless, cunning, dishonest, do anything for power, will speak dishonestly, reckless, a congenital liar, not qualified as commander in chief. “I mean, this sounds to me like campaign advocacy,” he said with a trace of amusement. Breyer said he had seen the movie “and it’s not a musical comedy.” And Ginsburg added, “If that isn’t an appeal to voters, I can’t imagine what is.”
Scalia rescued Olson at one point by noting that the kind of speech in a serious ninety-minute documentary may be entitled to more constitutional protection than the short, punchy ads, particularly speech that is not only offered to but invited by the listener who will pay for it, as in video on demand. “I agree with that completely,” Olson responded, and he then reserved the remainder of his thirty-minute argument time for a rebuttal to the government.
Malcolm Stewart, more formal in style, argued that the functional equivalence test in Wisconsin Right to Life did not depend on the
length of the advertisement or the medium used. Shortly afterward, Justice Alito launched a series of questions that soon dominated Stewart’s argument. Alito, who often sits with chin in hand and a slightly puzzled look on his face, does not ask questions as frequently as some of his colleagues, but when he does, they reflect a sharply analytical mind that zeroes in on an argument’s weakness.
Alito asked if the Constitution required Congress to limit, as it did, the corporate financing ban to broadcast and cable communications, or could the ban apply to communications distributed through the Internet, books, or DVDs? Stewart replied that the restrictions could have been applied to additional media to the extent they were constitutional under the Court’s Wisconsin Right to Life decision.
“That’s pretty incredible,” said Alito, as an audible gasp slipped from the audience at Stewart’s response. “You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?” Stewart calmly answered, “I’m not saying it could be banned. I’m saying Congress could prohibit the use of corporate treasury funds.”
The deputy tried to explain that the statute contained a media exemption, but Alito interjected, “I’m not asking what the statute says. The government’s position is that the First Amendment allows the banning of a book if it’s published by a corporation?” Stewart gamely responded, “Because the First Amendment refers both to freedom of speech and of the press, there would be a potential argument that media corporations, the institutional press, would have a greater First Amendment right.”
At that point, Roberts led Stewart through a series of hypotheticals about Kindles and books, books that mention a candidate’s name once, 500-page books that at the very end say, “Vote for X.” “Our position would be that the corporation could be required to use PAC funds rather than general treasury funds,” said Stewart. “And if they didn’t, you could ban it?” asked Roberts. “If they didn’t, we could prohibit the publication of the book using corporate treasury funds,” repeated Stewart.
Breyer stepped in, saying the answer to whether the government can ban labor unions, corporations, or environmentalists from saying they love A, B, or C, is “of course the government can’t ban that. The only question is who’s paying for it. And they can make a determination of how much money the payors can pay, but you can’t ban it.” Stewart agreed. “That’s correct.”
The deputy solicitor general told the justices that what made Citizens United an “easy” case was not simply that the movie repeatedly criticized Hillary Clinton’s character and integrity. “The clincher is that the film repeatedly links Senator Clinton’s purported character flaws to her qualifications for president.”
In his rebuttal, Olson immediately picked up on the book-banning exchange with Stewart and said it was clear that the government believed any form of express advocacy by a corporation can be prohibited, whether books, yard signs, newspapers—anything in printed form. But Breyer rejoined, “Of course you can’t prohibit all those things. What you do is put limitations on the payment for them. See that there are other ways of paying, say as PACs, and then limit very carefully the media that are affected and the times for which they are affected.” Those reforms are in the statute, he added.
Olson replied that five justices in Wisconsin Right to Life had said the PAC mechanism was burdensome and expensive, and, he added, it is particularly burdensome on small corporations—the least capable of communicating.
When the hour-long, swiftly paced argument ended, the lingering image in most observers’ minds was of the government banning books. Despite Stewart’s attempt to apply the language of the law and the Roberts Court’s most recent interpretation of it to Citizens United’s movie, what emerged from the arguments was a clear indication that five justices might be ready to overturn the 2003 decision upholding the McCain-Feingold law, and by doing that, fundamentally change political campaigns.
“Malcolm Stewart has huge integrity,” recalled Bossie. “It certainly didn’t sound good for their side when he said they can ban books. It really made us think we could win this thing. All I wanted to do was win something.”
“After that it was just a waiting game,” said Boos. Bossie added, “And the waiting game was really hard.”
Shortly before the arguments in Citizens United, a new solicitor general had come into office to represent the government before the Court: Elena Kagan, the forty-nine-year-old dean of Harvard Law School and a former adviser in the Clinton White House’s domestic policy office, was tapped by President Obama to head the office. Kagan, the first woman to fill that post, was widely admired for her brilliance and her management of the law school and her ability to bring together colleagues with diverse viewpoints. Her ties to Obama went back to their days in Chicago where she was a tenured professor at the University of Chicago School of Law and he was a part-time lecturer.
Kagan’s chief deputy in the office was Principal Deputy Solicitor General Neal Katyal, a highly respected constitutional law scholar at Georgetown University Law Center. Kagan, a former clerk to Justice Thurgood Marshall, not only had never argued before the Supreme Court but had never argued a case in any court. When he moved into the Office of Solicitor General, Katyal, a former Breyer clerk, had made just two Supreme Court arguments, the most important of which was his victory in Hamdan v. Rumsfeld during the first term of the Roberts Court. A 5–3 Court struck down the military commissions established by the Bush administration and Congress to try Guantánamo Bay detainees in the war on terror.
One of the brightest lawyers of his generation, the soft-spoken, unflappable Katyal, just thirty-nine at the time, would play a key role in the defense of Obama’s Affordable Care Act, a legal battle just one year away.
That spring, the Court itself was on the brink of another transition. In April 2009, rumors that David Souter would retire flew across airwaves and blog posts. The telltale sign? Although Souter was generally among the last of the justices to hire clerks for a new term, he had not begun to interview potential clerks by mid-April for the coming term. The eccentric Souter, a Yankee Republican who wrote with a fountain pen, worked by natural light until forced to turn on a lamp, and eschewed computers, never grew to like Washington even after nearly two decades on the Court, and he never hid his desire to return eventually to his home in New Hampshire.
Souter’s official retirement announcement would not come until May 1. Before that, however, he and his colleagues had the term’s final round of arguments to hear, and on that April calendar were two of the term’s biggest cases once again raising questions involving race discrimination.
• • •
The city of New Haven, Connecticut, administered promotion exams in 2003 to eligible firefighters. When the test results came back, they showed dramatic racial disparities. The pass rate of black candidates on exams for captain and lieutenant was about one half the pass rate of white candidates, and out of nineteen possible candidates for promotion to the fifteen available positions, no black firefighter scored high enough to qualify.
If it certified the test results, the city worried it could be sued by black firefighters for so-called disparate impact discrimination, which occurs when a policy or practice—neutral on its face—adversely affects a protected class of people. The city held several days of public hearings on whether to certify. At the end of the hearings, the city’s civil service board voted 2–2, which left the results uncertified. Soon afterwards, a group of white and one Hispanic firefighter sued the city, charging that its refusal to certify the results discriminated against them on the basis of race in violation of the Fourteenth Amendment’s equal protection clause and the ban on disparate treatment (intentional) discrimination in the nation’s major job bias law: Title VII.
The backdrop to the case, Ricci v. DeStefano, was a long history of racial discrimination in the hiring and promotions of firefighters across the country. That discrimination had proven to be more difficult to e
liminate than in any other public or private sector employment, according to briefs filed by civil rights groups in the case.
“The case involving the firefighters was terribly difficult,” recalled one justice, adding it was harder than the Seattle and Louisville school cases.
The difficulty for the Court was that the Ricci case pitted two critical prohibitions in Title VII against each other: the bans on disparate impact and on disparate treatment discrimination on the basis of race, color, gender, religion, and national origin. New Haven believed it would be sued whatever it did with the test results.
During the Ricci argument, Justice Souter summed up the dilemma for employers by saying it was a “damned if you do, damned if you don’t situation.”
The case also was difficult because it cracked open again the divide among the justices on how to view racial classifications. John Roberts had come to the Court deeply skeptical of all such classifications, and by the time he wrote his opinion in the Seattle and Louisville school cases in 2007, his skepticism had changed to overt hostility.
Roberts pressed the city’s lawyer on why the city’s failure to certify the test results was not intentional discrimination. “There are particular individuals here and they say they didn’t get their jobs because of intentional racial action by the city,” said the chief justice.
The city, supported by the United States, argued that it was trying to comply with Title VII and that declining to use the results of a flawed test was a race-neutral decision. In the end, no one was promoted. That decision, the United States also agreed, was not equivalent to prohibited racial balancing or imposing quotas.
However, the white firefighters’ lawyer countered that specific individuals had earned their promotions, “and then the city says too many non-minorities passed this test, and we are going to scuttle these results based on identifiable individuals who have passed and not based on anything approaching a demonstration that there is actually any disparate impact liability.” More is needed from the city than simply saying it was acting in good faith, he said.