The Oath: The Obama White House v. The Supreme Court

by Jeffrey Toobin

  As recently as the nineties, Supreme Court nominees could be eased into the confirmation process, first with a round of courtesy calls on a few senators and then with several weeks to prepare for their hearings. Harriet Miers put an end to that. Miers had been George W. Bush’s private attorney and then his White House counsel before he nominated her to replace Sandra Day O’Connor in 2005. (Bush initially named Roberts to take O’Connor’s place, but then Rehnquist’s death opened the chief justice position for Roberts.) Right after Miers’s nomination, her handlers at the White House scheduled a few informal meetings with senators, who took the opportunity to test her knowledge on a variety of issues. Miers performed disastrously, and she was soon forced to withdraw as a nominee.

  So there was nothing casual about Sotomayor’s preparations for her first meetings. (She eventually met with ninety-two senators, a substantial increase from prior practice.) Sotomayor had been a judge for the past seventeen years, and she was more used to asking questions than answering them. Plus, her docket in New York had not included some subjects that were closest to the hearts of the senators—like national security, gun rights, and the death penalty. She needed to study up, and fast.

  Like Cassandra Butts, who was still nominally the deputy counsel in charge of judicial nominations, Sotomayor had gone to a prestigious law school, but she had not operated in the universe of Supreme Court law clerks. The nominee felt an edge of condescension from what she called “the bright young things” on Greg Craig’s staff. Matters were not helped on June 8 when Sotomayor tripped at LaGuardia Airport and broke her ankle. She was determined to keep to her schedule of meetings on crutches—and to avoid using painkillers—but it wasn’t easy. Eventually Sotomayor agreed to take some Aleve, but she remained in pain for weeks. (In keeping with recent tradition, her future colleagues on the Supreme Court greeted her nomination with a frosty silence. No one called. Only Ginsburg, who as the justice responsible for the Second Circuit had known Sotomayor for years, wrote her a congratulatory note.)

  As her hearings approached, Sotomayor’s ambitions narrowed. This was not about explaining the Constitution or even winning arguments but only about getting confirmed. It did not help that after her nomination, but before her hearing, the Supreme Court voted 5–4 to overturn her decision in the New Haven firefighter case.

  As Sotomayor had often said, her own career was a monument to the success of affirmative action. She had a Hispanic and female take on the Constitution. But at her hearings, she steered away from that controversial territory. Instead, Sotomayor’s opening statement was a monument to banality. “In the past month, many senators have asked me about my judicial philosophy,” she said. “It is simple: fidelity to the law. The task of a judge is not to make the law—it is to apply the law.” Of course, all justices believe they are displaying fidelity to the law; the question is how they interpret the law. Like other nominees since Robert Bork, Sotomayor ducked questions about substantive issues—abortion and gun control especially—but her nonresponsiveness exceeded the norm. The Democrats had sixty votes; Sotomayor tried to run out the clock without making a mistake.

  On the “wise Latina” issue, Sotomayor caved. When questioned closely on the matter by Jeff Sessions, the senior Republican on the committee, she first dodged the central contention of her speeches: “My record shows that at no point or time have I ever permitted my personal views or sympathies to influence an outcome of a case. In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result.”

  “Well, Judge …,” Sessions interrupted.

  “I do not permit my sympathies, personal views, or prejudices to influence the outcome of my cases,” she said, ignoring the interruption.

  In the end, Sotomayor just walked away from her previous position. “I was using a rhetorical flourish that fell flat. I knew that Justice O’Connor couldn’t have meant that if judges reached different conclusions—legal conclusions—that one of them wasn’t wise. That couldn’t have been her meaning, because reasonable judges disagree on legal conclusions in some cases. So I was trying to play on her words. My play was—fell flat.

  “It was bad, because it left an impression that I believed that life experiences commanded a result in a case, but that’s clearly not what I do as a judge,” she went on. “It’s clearly not what I intended in the context of my broader speech, which was attempting to inspire young Hispanic, Latino students and lawyers to believe that their life experiences added value to the process.”

  From the perspective of the White House, Sotomayor’s hearing was a clear success. Above all, she did nothing to jeopardize her chances of being confirmed. In a way, it was an Obama-like performance—progressive by implication, biographical rather than ideological. Sotomayor was a highly qualified nominee whose views appeared to mirror the careful inclinations of the president who appointed her. That’s what Obama wanted in a Supreme Court justice, and that’s what he received. On July 28, the Judiciary Committee voted 13–6 in her favor. (Only Lindsey Graham, Republican of South Carolina, crossed party lines to vote for her.) On August 6, the full Senate confirmed Sotomayor by a vote of 68–31. (Nine Republicans voted for her.)

  Roberts and Alito had been sworn in at the White House—over the objections of John Paul Stevens, a fierce defender of the prerogatives of the judicial branch of government. Stevens thought such ceremonies should take place at the Supreme Court, because new justices should make clear that they now owed no allegiance to the president who appointed them. In a subtle but unmistakable sign of her inclinations in the battles to come, Sotomayor agreed with Stevens. On August 8, at the Supreme Court, she officially became the 111th justice in American history.

  It was especially important for Sotomayor to take her place right away, because the Court was hearing a case before the traditional start of the year, on the first Monday in October. It was September 9, 2009, when Sotomayor ascended the bench for the first time and heard the chief justice call her first case. It also turned out to be the first case argued by the new solicitor general, Elena Kagan.

  “We’ll hear argument today in Case 08-205,” Roberts said, “Citizens United v. the Federal Election Commission.”

  11

  MONEY TALKS

  The story of Citizens United includes several of the great themes of Supreme Court history, among them corporate power, freedom of speech, and the intersection of law and politics. The tale involves legislation and court cases of enormous complexity, but the struggle at its heart has been a fairly simple one. For more than a century, the partisans in these battles have sometimes seen fit to obscure or deny the ideological fissures, but the sides have remained more or less the same: progressives (or liberals) vs. conservatives, Democrats vs. Republicans, regulators vs. libertarians. One side has favored government rules to limit the influence of the wealthy in political campaigns; the other has supported a freer market allowing individuals and corporations to contribute as they see fit. The battles sometimes had unexpected consequences, but the motivations on either side never changed.

  The saga began with one of the enduring mysteries in the history of the Supreme Court. In 1886, the Court heard a rather obscure and uncontroversial tax case called Santa Clara County v. Southern Pacific Railroad. The lawsuit concerned whether a railroad should have to pay taxes on fences adjacent to its tracks. What made the case famous was a remark by Chief Justice Morrison R. Waite, just prior to the oral argument. Waite told the lawyers, “The court does not want to hear argument on the question of whether the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.”

  The argument proceeded, and the Court unanimously decided the case in favor of the railroad. The fences were not taxable. The justices never addressed the issue of whether corporations, for purposes of the Fourteenth Amend
ment, were persons. Still, just before the opinion was issued, J. C. Bancroft Davis, the clerk of the Supreme Court, wrote to Chief Justice Waite to ask him about his remark before the oral argument. Waite confirmed what he said, and Davis quoted the remark verbatim in his “headnote,” or summary of the case. From the earliest days of the Supreme Court, these headnotes had been prepared by the staff of the Court, not the justices, and they have never been part of the official opinions of the Court. They have no formal legal significance; they are merely to assist readers of the Court’s opinions. Still, the Santa Clara headnote became the wellspring for a crucial idea in the history of American law: under the Fourteenth Amendment, corporations had the same rights as people. In an opinion from 1978, then–Justice Rehnquist said of the Santa Clara case, “This Court decided at an early date, with neither argument nor discussion, that a business corporation is a ‘person’ entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment.”

  All these years later, questions about the Santa Clara case abound. Why didn’t Waite want to hear argument on this question? Why didn’t the justices address the point in an opinion? Why did they leave this momentous issue to be settled by the clerk of the Court? The writer Jack Beatty, who examined the questions in detail, could not settle the matter with certainty: “Davis may have gotten it right, may have misunderstood what Waite said or meant, or may have understood yet gone ahead to make constitutional law on his own.”

  The historical context for the Court’s decision was clear. In the aftermath of the Civil War, the Court remained what it had been before the war—a very conservative institution. During Reconstruction, Congress and the states passed three new amendments to the Constitution—the Thirteenth, Fourteenth, and Fifteenth—to give the newly freed slaves the full rights of citizenship. Almost immediately, the Supreme Court did much to undermine these new provisions, ultimately permitting the continued oppression of African Americans. At the same time, the justices became eager accomplices in the excesses of the Gilded Age. In a series of cases, including Santa Clara, the Court prevented any governmental restraints on the great new concentrations of wealth and power in commercial and corporate interests. Black people and poor people had few friends among the justices.

  This time at the Court came just before the Lochner era, which was named after the most famous case of its day. In an early attempt to protect workers from exploitation, New York passed a law prohibiting bakery employees from working more than sixty hours a week. In the 1905 case known as Lochner v. New York, the Court declared the state law unconstitutional on the ground that it interfered with the “right of contract” of both the employer and the employee. “The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution,” Justice Rufus Peckham wrote for the 5–4 majority. In short, the New York law was an “unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family.” In simple terms, the majority in Lochner turned the Fourteenth Amendment, which was enacted to protect the rights of newly freed slaves, into a mechanism to advance the interest of business owners.

  The implications of Lochner were breathtaking. The Court basically asserted that all attempts to regulate the private marketplace, or to protect workers, were unconstitutional. In the words of the legal historian Morton J. Horwitz, Lochner “expressed, above all, the post–Civil War triumph of laissez-faire principles in political economy and of the view that ‘the government is best which governs least.’ ” The concept of “judicial activism,” if not that precise term, dates to this period at the end of the nineteenth and early part of the twentieth centuries. During this time, the democratically elected branches of government passed a variety of laws to protect workers and other individuals. But the Court imposed itself as a superlegislature, rejecting many of these laws as violating the right to contract and due process of law. The Lochner era at the Supreme Court reflected conservative judicial activism; later, in the Warren Court era, there would be liberal judicial activism when the justices began overturning laws that violated the rights of minorities and women.

  The conservative extremism of the Lochner era at the Supreme Court, and its broader political implications, eventually generated a backlash. Around the turn of the century, disparate reform movements began gaining traction. Antitrust legislation, food safety rules, child labor laws, women’s suffrage, a tax on income—all came together under the broad rubric of Progressivism. Theodore Roosevelt, who became president in 1901, made the movement his own.

  Roosevelt won a landslide election in 1904, helped in part by vast campaign contributions by corporations. Roosevelt drew heavily from railroad and insurance interests and, in the last days before the election, made a personal appeal for funds to a group of wealthy businessmen, including Henry Clay Frick, the steel baron. Years later, Frick recalled of Roosevelt, “He got down on his knees to us. We bought the son-of-a-bitch and then he did not stay bought.” Almost as soon as TR won the election, he turned his attention to passing the first campaign finance reform act in American history—trying to outlaw the very techniques he had just used to hang on to the presidency. Roosevelt put the effort to ban corporate money in politics near the top of his agenda. In his annual message to Congress on December 5, 1905, he recommended that “all contributions by corporations to any political committee or for any political purpose should be forbidden by law.”

  Roosevelt’s efforts came to fruition in 1907 with the passage of the Tillman Act, named for the eccentric rogue “Pitchfork” Ben Tillman, the South Carolina senator who sponsored the law. To be sure, the act was a modest first step. The law barred corporations from contributing to campaigns and established criminal penalties for violations, but there was no enforcement mechanism. (The Federal Election Commission would not be created for decades.) Loopholes proliferated. For example, individuals could still give as much as they wanted to political campaigns and be reimbursed for the contributions by their employers. Nevertheless, the Tillman Act was a nod toward what Congress described as its goal: elections “free from the power of money.”

  That never happened. In subsequent decades, the power of money in politics only grew. After World War II, candidates campaigned principally by buying advertisements on television, and that strategy created an ever-increasing need for cash. Richard Nixon’s obsession with campaign fund-raising was one of the principal motivations that led to the Watergate scandals.

  Watergate prompted the second great wave of campaign finance reform. The major legislative enactment of this era was the Federal Election Campaign Act Amendments of 1974, which created much of the regulatory structure that endures today. This law enacted unprecedented limits on campaign contributions and spending, created the Federal Election Commission to enforce the act, established an optional system of public financing for presidential elections, and required extensive disclosure of campaign contributions and expenditures.

  And Watergate, and its legislative fallout, brought the Supreme Court into the thick of the issue.

  Shortly after the new law went into effect, a group of politicians, including James L. Buckley, then a senator from New York, and Eugene McCarthy, the former senator and presidential candidate, challenged the new rules as unconstitutional. To this point in the Court’s history, few decisions dealt with the constitutionality of campaign finance regulation. The Tillman Act was never directly tested in the Supreme Court, and no one questioned the right of the federal government to restrict corporate political spending. But the 1974 reforms were challenged in court, and the resulting decision, known as Buckley v. Valeo, issued in 1976, has gone down in history as one of the Supreme Court’s most complicated, contradictory, incomprehensible (and longest) opinions.

  No one really knows who wrote it
. It is signed per curiam—“by the Court”—a label the justices usually use for brief and minor opinions. In Buckley v. Valeo, however, the Court used it to signal a team effort of sorts. William Brennan is generally regarded to have written much of Buckley, but Brennan’s biographers note that sections were also composed by Warren Burger, Potter Stewart, Lewis Powell, and William Rehnquist. Not surprisingly, in light of the multiple authors, the opinion is a product of several compromises. To add to the confusion, five justices also wrote opinions concurring in part and dissenting in part from the majority. (A quarter century later, Bush v. Gore was another per curiam opinion by the Court that reflected poorly on the institution.)

  It is possible, however, to extract some meaning from the dog’s breakfast that is Buckley v. Valeo. At the heart of the decision is a distinction between expenditures and contributions. The Court said that, under the First Amendment, Congress could not restrict campaign expenditures. Spending money was like speech itself because “every means of communicating ideas in today’s mass society requires the expenditure of money.” That included printing handbills, renting halls, and buying ads on television. It is a result of Buckley that wealthy candidates can spend as much as they want of their own money on their campaigns; it would be unconstitutional to limit their expenditures.

  On the other hand, according to Buckley, limits on contributions were constitutionally permissible. The Court said that a campaign contribution served only as “a general expression of support for the candidate and his views, but does not communicate the underlying basis for the support.” In the Court’s view, limiting contributions did not really inhibit much political expression by the person giving the money. This was why the Court concluded that it was permissible for the law to limit how much an individual could contribute to any particular campaign.