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

by Jeffrey Toobin

  Bearded, genial, and professorial, Bauer didn’t look like what he was: a fierce Democratic partisan. Given his background, he was also uniquely well positioned to understand the implications of Citizens United. The initial news reports portrayed the Court’s decision almost as an act of bipartisanship. These reports tended to stress that the decision freed both labor unions and corporations to make unlimited expenditures on behalf of candidates. Because unions generally supported Democrats and corporations backed Republicans, the decision was described as an equal opportunity act of deregulation.

  Bauer knew this was nonsense. Unions had been shrinking for a half century. Citizens United gave them permission to spend millions of dollars they didn’t have. On the other hand, corporations controlled most of the wealth in the country. Corporations, especially private corporations, skewed overwhelmingly Republican. Moreover, in crude terms, Republicans had more money than Democrats; anything that deregulated the political process was thus likely to help the GOP. It was clear to Bauer that Citizens United was a gift to the Republican Party.

  Citizens United was also, Bauer knew, an invitation to chaos. From long experience, Bauer understood that candidates and political parties were subject to real scrutiny from the media and their constituents. People running for office worried about defending the sources of their campaign money and how they spent it. In contrast, Citizens United empowered interests that were largely immune from public attention. The decision authorized independent expenditures by companies and committees that were generally unknown. Citizens United did uphold disclosure requirements; it was constitutional to force campaigns and committees to reveal the sources of their funds. But that detail scarcely mattered in the real world. These disclosures tended to take place long after the fact, and donors had ways of camouflaging their identities in any case. Because of Citizens United, unlimited amounts of money would be funneled into shadowy organizations to spend on commercials right before elections. The damage would be done before anyone knew who funded or produced the ads.

  So what to do? The dilemma in the Obama White House bore some similarity to those Franklin D. Roosevelt faced in 1935. (And the resemblance would become greater in short order.) During Roosevelt’s first term, a conservative Supreme Court declared unconstitutional several signature initiatives of the New Deal, including the National Industrial Recovery Act. The decisions represented the final spasm of the Lochner era, the long period when the Court regarded economic regulations as violations of the right to contract, or to due process of law. At first, Roosevelt responded to these decisions by launching his ill-fated court-packing plan in 1937. That idea—to add to the number of justices on the Court—died an unmourned death, but FDR achieved the same result by other means. During his long presidency, he named eight justices to the Court, and his appointees buried Lochner and allowed a vigorous federal role in the national economy. In 2010, those options were not available to Obama. There was not even a single vacancy at the Court.

  And the clock was ticking for the administration to respond. Citizens United came out on the morning of Thursday, January 21, 2010. Six days later, Obama was to give the State of the Union address. What should he say?

  In every administration, the production of the State of the Union address is an elaborate operation. Cabinet officials press for mentions of their initiatives. Congressional leaders lobby for their priorities. Political advisers test ideas in polls. The process takes many weeks. In rough terms, the White House plans its year around the speech. By the time Citizens United was read and digested, the White House had a matter of hours to respond.

  David Axelrod, the president’s top political adviser, was enraged by the opinion. A former journalist in Chicago, Axelrod came into politics as a reformer, and he had a deep understanding of the procedural issues underlying how campaigns operated. Specifically, Axelrod had intimate familiarity with the business of television commercials—how time was purchased and how the ads affected campaigns. Better than anyone at the White House, even Bauer, Axelrod understood the implications of Citizens United. Of course, given his responsibilities, Axelrod thought it was politically advantageous for Obama to get in front on the issue. More importantly, Axelrod wanted to raise the alarm. He knew where the Court’s decision would lead.

  That still left the question of what Obama should say in his speech about Citizens United. A Supreme Court decision interpreting the Constitution can be overturned only by a new decision or by a constitutional amendment. A call for a constitutional amendment would be seen as extreme, not to mention futile. Still, there was a chance to make a difference in the margins of the decision. Since the Court’s call for reargument in the spring of 2009, the president’s Democratic allies in Congress had been making plans for a response. A handful of Democrats, including Senator Charles Schumer of New York and Congressman Chris Van Hollen of Maryland, came up with what they called the DISCLOSE (Democracy Is Strengthened by Casting Light on Spending in Elections) Act. Because Kennedy’s opinion had upheld McCain-Feingold’s requirement that contributors be identified, the proposed new law would strengthen that requirement. It was not much—there was not much that could be done—but it was enough for the president to endorse in his speech.

  The wording proved difficult. Election reform issues are notoriously difficult to explain, and voters tend to tune them out. The issue grew so complicated that Emanuel convened a meeting in his office to settle what Obama would say. Axelrod, Bauer, Ron Klain, and a few others pored over the Citizens United decision—parsed it, sentence by sentence—to make sure they were on solid ground. Like Ruth Ginsburg, Emanuel recognized the political appeal of arguing that foreign corporations could start buying their way into American elections.

  “How sure are we on this foreign corporations thing?” Emanuel asked the group.

  Sure enough, he was told.

  The justices’ attendance at the State of the Union had been spotty at best in recent years. In the sixteen years before 2010, six was the largest number of justices to attend the event. From 2006 to 2008, just four attended. Two came in 2002. Rehnquist missed one year because his painting class met that evening; other times he just chose not to come. Breyer was the only justice to attend in 2001 and from 2003 to 2005. Breyer made it a point to attend every year. He thought that the justices’ appearance was an important symbol that the Supreme Court was a part of the government and had respect for the coordinate branches. But even Breyer didn’t make it in 2000. (He had the flu.) Not one justice did.

  It was easy to see why they skipped the event. For decades, the State of the Union had been a highly political occasion, where the president laid out his accomplishments and agenda. The legislators in the president’s party frequently jumped to their feet and cheered; those from the opposing party mostly sat in silence. The justices had to calibrate when it was appropriate to applaud. Generic patriotic appeals, yes; the president’s priorities, no. A tribute to the troops, yes; a plea to cut taxes, no. All in all, it was easier to stay home.

  During the discussion in Emanuel’s office, as well as the president’s own prep sessions, the propriety of challenging the Supreme Court had never come up. The group was so focused on pushing Obama’s agenda that the issue of the justices’ presence seems not to have occurred to anyone. The administration’s anger about Citizens United was such that (even though no one said this specifically) the Obama team simply regarded the Supreme Court majority as another group of Republicans, deserving no greater deference than GOP senators or congressmen.

  But once Obama reached the relevant portion of his speech, he was very much aware of the justices assembled in front of him. “It’s time to require lobbyists to disclose each contact they make on behalf of a client with my Administration or Congress. And it’s time to put strict limits on the contributions that lobbyists give to candidates for federal office,” Obama said. Then, looking up at the justices, the president ad-libbed a revealing phrase: “With all due deference to separation of powers.
” Obama suddenly realized that he was attacking the Supreme Court and decided to soften the sentiment. Specifically, he said, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” The Democrats rose in a standing ovation. “I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities.” More partisan applause. “They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.”

  Had the matter been left there, that portion of the speech might have drawn little notice. But, as was customary, the network television pool had received an advance copy of the State of the Union, so the producer knew that the reference to the Supreme Court was coming. He ordered cameras trained on the justices before Obama’s reference to them. Roberts, Kennedy, Ginsburg, and Breyer were in the front row, with Alito behind Roberts and Sotomayor behind Kennedy. As it happened, Alito was wedged into an especially partisan corner. To his right was the Obama cabinet; behind him were the Democratic leaders of the Senate: Harry Reid, Dick Durbin, and Schumer. All three vaulted to their feet as Obama denounced Citizens United.

  Alito had spent most of his life in New Jersey, in nearly total obscurity. (Before joining the Supreme Court, he had lived in Washington only during part of the Reagan administration.) Circuit judges are not celebrities. Alito was not used to being photographed. He detested the attention he received during his confirmation hearings. It did not even occur to him that he would be on camera. So he did not censor his reactions. When Obama said “foreign corporations” could spend without limit, Alito shook his head and mouthed, “Not true.” And he went on shaking his head as Obama made his second reference to foreign influence. Alito’s colleagues sat stone-faced. Behind him, Schumer was nodding his head as vigorously as Alito was shaking his.

  Afterwards, both Obama and Alito received some criticism for their behavior. The president and the justice were said to have disrespected each other, but in fact Obama understated the consequences of Citizens United.

  Alito’s actions were also revealing. It was not a coincidence that Alito was the most irritated of the justices. After all, he was the only one who had snubbed Obama and Biden at their preinaugural visit to the Court. Alito was also the author of the Ledbetter decision, which Obama took such relish in overturning. The clash was a moment of great authenticity. Obama and Alito were both men of intelligence and integrity; they were also dedicated political adversaries. The Democratic president and the Republican justice were deeply divided on Citizens United and a host of other issues. The brief back-and-forth was a glimpse of the truth.

  The drama almost obscured the question of which one of them was right. Did Citizens United pave the way for foreign corporations to spend without limit in American elections? (In the aftermath of the speech, Obama demanded a memo from Bauer to satisfy himself on the issue.) Kennedy’s opinion explicitly refrained from ruling on the limits on foreign corporations. “We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process,” he wrote. So Alito had a point: the Court did not specifically rule that foreign corporations could spend money in American elections.

  But Obama and his speechwriters had chosen their words with care. The president said only that Citizens United was a decision “that I believe will open the floodgates” to the influx of foreign money. There was good reason for this belief. In response to Ginsburg’s questions during the oral argument, Olson had said the Constitution required the government to treat American or foreign corporations the same way; the lawyer thought both should be allowed to spend money on political campaigns. Furthermore, Citizens United said American corporate money presented no special risk of corrupting the political system; there was ample reason to believe that the Court would reach the same conclusion about foreign contributions. Consequently, Obama was well within his rights to state that the rights granted in Citizens United would be extended to foreigners. Both Alito and Obama drew reasonable, though conflicting, conclusions from the text of Citizens United.

  In any case, the electric moment at the State of the Union defined in the public mind what had otherwise been an abstraction: the Obama White House and the Roberts Supreme Court were at odds. If there was any doubt in the aftermath of Obama’s speech, the conservative justices began publicly denouncing the State of the Union as an unbearably partisan occasion. In a Federalist Society event, Scalia said it had been a “juvenile spectacle.” In a talk at a Florida law school, Thomas said, “I don’t go because it has become so partisan and it’s very uncomfortable for a judge to sit there.” He added that “there’s a lot that you don’t hear on TV—the catcalls, the whooping and hollering and under-the-breath comments.” In an appearance in New York, Alito said it was awkward “to sit there like the proverbial potted plant.”

  The issue presented a special challenge for the chief justice, who at once wanted to defend the integrity of his decisions but also sought to preserve the picture (misleading though it was) of an apolitical Supreme Court. Roberts’s frustrations came out in a question-and-answer session with students at the University of Alabama School of Law several weeks after Obama’s speech. Asked about the president’s criticism, Roberts said, “I have no problems with that. On the other hand, there is the issue of the setting, the circumstances, and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the Court—according to the requirements of protocol—has to sit there expressionless, I think is very troubling.” He went on, “To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we’re there.” Roberts’s complaint was understandable, though he and the other conservative justices had no grievances when George W. Bush gave his State of the Union addresses.

  Asked about the chief justice’s remarks, Robert Gibbs, Obama’s spokesman, voiced none of the traditional deference to the Court. “What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections—drowning out the voices of average Americans,” Gibbs said. The conflict between the White House and the Court was now out in the open.

  For his part, Alito spent the next State of the Union in Hawaii.

  On March 21, 2010, two months after the State of the Union, the House of Representatives passed Obama’s health care reform law, bringing to fruition decades of work by Democratic presidents and legislators. It marked the signal accomplishment of the president’s term. Obama’s popularity, however, was already tumbling. The economic recovery was faltering. Unemployment was rising. And at the Supreme Court, the justices were waiting for John Paul Stevens to announce he was leaving.

  Like Souter, Stevens was a Republican who became alienated from his party. As old as Stevens was, he might well have hung on if McCain had won the previous election. As much as Souter wanted to leave, he too might have remained on the Court in the same circumstances. Stevens had a special fondness for Obama because of their shared Chicago roots. Stevens’s decision, long expected, came on April 9, almost exactly eleven months after Souter’s. Stevens’s letter reflected his plainspoken manner. “My dear Mr. President,” Stevens wrote. “Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next Term, I shall retire from regular active service as an Associate Justice … effective the next day after the Court rises for the summer recess this year.”

  In Stevens’s final spring, the conservative decisions continued. Two years earlier, in Heller, the Court had overturned a District of Columbia gun ordinance on the ground that the Second Amendment gives in
dividuals a right to keep and bear arms. Because that law was limited to D.C. (which is not a state), Heller addressed only the right of the federal government to pass gun control laws. In McDonald v. Chicago, the question was whether the new interpretation of the Second Amendment applied to states as well as to the federal government.

  The case dealt with a constitutional concept known as “incorporation.” By their express terms, most of the provisions of the Bill of Rights apply only to the federal government. For example, the text of the First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press.” The amendment says nothing about the states. But during the twentieth century, the Court decided that most of the provisions of the Bill of Rights applied against the states as well. This process, which was associated with Hugo Black during his long career on the Court, was known as “incorporation.” How did the Court decide which rights should be incorporated? Over a series of cases, the justices determined whether the right was “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” The issue in McDonald was whether the right of an individual to bear arms, under the Second Amendment, met this test.

  Alito’s opinion, for the five conservatives, said yes. The Second Amendment right was so fundamental and deeply rooted that it should apply against the states as well as the federal government. “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is ‘the central component’ of the Second Amendment right,” Alito wrote. In a dissent that was alternately weary and anguished, Stevens pointed out that it was only two years earlier—2008—that the Court for the first time recognized any individual rights under the Second Amendment. “States have a long and unbroken history of regulating firearms. The idea that States may place substantial restrictions on the right to keep and bear arms short of complete disarmament is, in fact, far more entrenched than the notion that the Federal Constitution protects any such right,” Stevens wrote. After just two years, how could the right be “fundamental”? To Stevens, the Second Amendment did not carry the same weight as freedom of speech and religion. He wrote, “It does not appear to be the case that the ability to own a handgun, or any particular type of firearm, is critical to leading a life of autonomy, dignity, or political equality.”