Instant Analysis

One of the most distinct aspects of Heller, was the knock-out drag-down brawl between Justice Scalia and Stevens over the original understanding of the Second Amendment (I discuss this discussion here). Well, Citizens United is Round II!

From Nino’s Concurrence:

I write separately to address JUSTICE STEVENS’ discus-sion of “Original Understandings,” post, at 34 (opinionconcurring in part and dissenting in part) (hereinafterreferred to as the dissent). This section of the dissent purports to show that today’s decision is not supported bythe original understanding of the First Amendment. The dissent attempts this demonstration, however, in splendid isolation from the text of the First Amendment. It never shows why “the freedom of speech” that was the right ofEnglishmen did not include the freedom to speak in asso-ciation with other individuals, including association in the corporate form. To be sure, in 1791 (as now) corporations could pursue only the objectives set forth in their charters;but the dissent provides no evidence that their speech inthe pursuit of those objectives could be censored.
Instead of taking this straightforward approach todetermining the Amendment’s meaning, the dissent em-barks on a detailed exploration of the Framers’ views about the “role of corporations in society.” Post, at 35. The Framers didn’t like corporations, the dissent con-cludes, and therefore it follows (as night the day) thatcorporations had no rights of free speech. Of course the Framers’ personal affection or disaffection for corporationsis relevant only insofar as it can be thought to be reflected in the understood meaning of the text they enacted—not, as the dissent suggests, as a freestanding substitute for that text. But the dissent’s distortion of proper analysis iseven worse than that. Though faced with a constitutionaltext that makes no distinction between types of speakers, the dissent feels no necessity to provide even an isolatedstatement from the founding era to the effect that corpora-tions are not covered, but places the burden on petitionersto bring forward statements showing that they are (“thereis not a scintilla of evidence to support the notion that anyone believed [the First Amendment] would preclude regulatory distinctions based on the corporate form,” post,at 34–35).

The dissent offers no evi-dence—none whatever—that the First Amendment’s unqualified text was originally understood to exclude such associational speech from its protection.5

Justice Stevens counters, with some originalism of his own:

Let us start from the beginning. The Court invokes “ancient First Amendment principles,” ante, at 1 (internalquotation marks omitted), and original understandings, ante, at 37–38, to defend today’s ruling, yet it makes only a perfunctory attempt to ground its analysis in the principles or understandings of those who drafted and ratified
the Amendment. Perhaps this is because there is not ascintilla of evidence to support the notion that anyone believed it would preclude regulatory distinctions based on the corporate form. To the extent that the Framers’ views are discernible and relevant to the disposition of this case,they would appear to cut strongly against the majority’sposition

In light of these background practices and understandings, it seems to me implausible that the Framersbelieved “the freedom of speech” would extend equally toall corporate speakers, much less that it would precludelegislatures from taking limited measures to guard against corporate capture of elections.

Update: Thanks for the link Professor Solum. See all my posts on Citizens United here.

Yet another pretty piece of dictum, that I think, will set the stage for a future constitutional challenge,on the application of BCRA to foreign individuals.  Really looking forward to that case.

We need not reach the question whether the Govern-ment has a compelling interest in preventing foreign individuals or associations from influencing our Nation’spolitical process. Cf. 2 U. S. C. §441e (contribution and expenditure ban applied to “foreign national[s]”). Section 441b is not limited to corporations or associations that were created in foreign countries or funded predominatelyby foreign shareholders. Section 441b therefore would be overbroad even if we assumed, arguendo, that the Gov-ernment has a compelling interest in limiting foreigninfluence over our political process. See Broadrick, 413
U. S., at 615.

Whenever SCOTUS overturns a big precedent, they need to pay lip service to stare decisis and judicial restraint. In Citizens United, SCOTUS did just that by oveturning Austin v. Michigan Chamber of Commerce. Here are some of my initial thoughts on this topic.

From the majority opinion:

It is not judicial restraint to accept an unsound, narrow argument just so the Court canavoid another argument with broader implications. In-deed, a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling. Here, the lack of a valid basis for an alternative ruling requires full consid-eration of the continuing effect of the speech suppressionupheld in Austin.

Our precedent is to be respected unless the most con-vincing of reasons demonstrates that adherence to it putsus on a course that is sure error. “Beyond workability, therelevant factors in deciding whether to adhere to theprinciple of stare decisis include the antiquity of theprecedent, the reliance interests at stake, and of course whether the decision was well reasoned.” Montejo v. Louisiana, 556 U. S. ___, ___ (2009) (slip op., at 13) (over-ruling Michigan v. Jackson, 475 U. S. 625 (1986)). We have also examined whether “experience has pointed up the precedent’s shortcomings.” Pearson v. Callahan, 555
U. S. ___, ___ (2009) (slip op., at (overruling Saucier v. Katz, 533 U. S. 194 (2001))

These considerations counsel in favor of rejecting Aus-tin, which itself contravened this Court’s earlier prece-dents in Buckley and Bellotti. “This Court has not hesi-tated to overrule decisions offensive to the First Amendment.” WRTL, 551 U. S., at 500 (opinion of SCALIA, J.). “[S]tare decisis is a principle of policy and not a me-chanical formula of adherence to the latest decision.” Helvering v. Hallock, 309 U. S. 106, 119 (1940).

This section may have special relevance to McDonald v. Chicago, which will consider whether the Court should overturn the Slaughterhouse cases.

Austin is undermined by experience since its an-nouncement. Political speech is so ingrained in our cul-ture that speakers find ways to circumvent campaign finance laws. See, e.g., McConnell, 540 U. S., at 176–177 (“Given BCRA’s tighter restrictions on the raising andspending of soft money, the incentives . . . to exploit [26
U. S. C. §527] organizations will only increase”). Our Nation’s speech dynamic is changing, and informativevoices should not have to circumvent onerous restrictions to exercise their First Amendment rights.  Speakers havebecome adept at presenting citizens with sound bites, talking points, and scripted messages that dominate the24-hour news cycle.

In much the same way, Slaughterhouse, and its progeny, Cruikshank and Presser, have been undermined by nearly a Century of due process incorporation, not to mention voluminous scholarship. This may find its way into arguments on March 2. We shall see.

With respect to reliance interests:

No serious reliance interests are at stake. As the Court stated in Payne v. Tennessee, 501 U. S. 808, 828 (1991),reliance interests are important considerations in property and contract cases, where parties may have acted in con-formance with existing legal rules in order to conducttransactions. Here, though, parties have been prevented from acting—corporations have been banned from making independent expenditures. Legislatures may have en-acted bans on corporate expenditures believing that thosebans were constitutional. This is not a compelling interest for stare decisis. If it were, legislative acts could prevent us from overruling our own precedents, thereby interfer-ing with our duty “to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

From Chief Justice Robert’s concurring opinion, joined by Justice Alito:

I write separately to address the important princi-ples of judicial restraint and stare decisis implicated in this case.

Roberts addresses the avoidance cannon, which he leaned on, quite heavily, last year in NAMUDNO

The majority’s step-by-step analysis accords with ourstandard practice of avoiding broad constitutional ques-tions except when necessary to decide the case before us. Indeed, that is precisely the approach the Court took just last Term in Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U. S. ___ (2009), when eight Members of theCourt agreed to decide the case on statutory groundsinstead of reaching the appellant’s broader argument that the Voting Rights Act is unconstitutional.

This is kind a rebuke of Justice Thomas, who dissented, all alone.

Roberts next provides an interesting “order of operations” when to consider a constitutional question, and when to avoid it:

It is only because the majority rejects Citizens United’sstatutory claim that it proceeds to consider the group’s various constitutional arguments, beginning with its narrowest claim (that Hillary is not the functional equiva-lent of express advocacy) and proceeding to its broadest claim (that Austin v. Michigan Chamber of Commerce, 494
U. S. 652 (1990) should be overruled). This is the same order of operations followed by the controlling opinion in Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449 (2007) (WRTL). There the appellant was able to prevail on its narrowest constitutional argumentbecause its broadcast ads did not qualify as the functional equivalent of express advocacy; there was thus no need togo on to address the broader claim that McConnell v. Federal Election Comm’n, 540 U. S. 93 (2003), should be overruled. WRTL, 551 U. S., at 482; id., at 482–483 (ALITO, J., concurring). This case is different—not, as the dissent suggests, because the approach taken in WRTL has been deemed a “failure,” post, at 11, but because, in the absence of any valid narrower ground of decision,there is no way to avoid Citizens United’s broader consti-tutional argument.

But Roberts, does not agree with the dissent’s characterization of the avoidance cannon. He distinguishes between “judicial restraint” and “judicial abdication.” Fascinating.

This approach is based on a false premise: that our practice of avoiding unnecessary (and unnecessarilybroad) constitutional holdings somehow trumps our obli-gation faithfully to interpret the law. It should go withoutsaying, however, that we cannot embrace a narrow ground of decision simply because it is narrow; it must also beright. Thus while it is true that “[i]f it is not necessary todecide more, it is necessary not to decide more,” post, at 14 (internal quotation marks omitted), sometimes it is neces-sary to decide more. There is a difference between judicial restraint and judicial abdication. When constitutional questions are “indispensably necessary” to resolving thecase at hand, “the court must meet and decide them.” Ex parte Randolph, 20 F. Cas. 242, 254 (No. 11, 558) (CC Va.1833) (Marshall, C. J.)

On stare decisis:

U. S. 203, 212 (1984).
At the same time, stare decisis is neither an “inexorable command,” Lawrence v. Texas, 539 U. S. 558, 577 (2003),nor “a mechanical formula of adherence to the latest deci-sion,” Helvering v. Hallock, 309 U. S. 106, 119 (1940),especially in constitutional cases, see United States v. Scott, 437 U. S. 82, 101 (1978). If it were, segregation would be legal, minimum wage laws would be unconstitu-tional, and the Government could wiretap ordinary crimi-nal suspects without first obtaining warrants. See Plessy
v.
Ferguson, 163 U. S. 537 (1896), overruled by Brown v. Board of Education, 347 U. S. 483 (1954); Adkins v. Children’s Hospital of D. C., 261 U. S. 525 (1923), overruled by West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937); Olmstead v. United States, 277 U. S. 438 (1928), overruled by Katz v. United States, 389 U. S. 347 (1967). As the dissent properly notes, none of us has viewed stare decisis in such absolute terms. Post, at 17; see also, e.g., Randall
v.
Sorrell, 548 U. S. 230, 274–281 (2006) (STEVENS, J., dissenting) (urging the Court to overrule its invalidation of limits on independent expenditures on political speech in Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam)).
Stare decisis is instead a “principle of policy.” Helvering, supra, at 119. When considering whether to reexamine a prior erroneous holding, we must balance the importanceof having constitutional questions decided against the importance of having them decided right. As Justice Jackson explained, this requires a “sober appraisal of thedisadvantages of the innovation as well as those of thequestioned case, a weighing of practical effects of one against the other.” Jackson, Decisional Law and Stare Decisis, 30 A. B. A. J. 334 (1944).

Here, Roberts discusses how to balance stare decisis:

In conducting this balancing, we must keep in mind that stare decisis is not an end in itself. It is instead “the means by which we ensure that the law will not merelychange erratically, but will develop in a principled and intelligible fashion.” Vasquez v. Hillery, 474 U. S. 254, 265 (1986). Its greatest purpose is to serve a constitutionalideal—the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedentdoes more to damage this constitutional ideal than toadvance it, we must be more willing to depart from thatprecedent.

Here Roberts seems to lay out several factors to consider when overruling precedent

Likewise, if adherence to a precedent actually impedesthe stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen ina number of circumstances, (1) such as when the precedent’s validity is so hotly contested that it cannot reliably func-tion as a basis for decision in future cases, (2) when its ra-tionale threatens to upend our settled jurisprudence inrelated areas of law, and (3) when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new anddifferent justifications to shore up the original mistake.See, e.g., Pearson v. Callahan, 555 U. S. ___, ___ (2009) (slip op., at 10); Montejo v. Louisiana, 556 U. S. ___, ___ (2009) (slip op., at 13) (stare decisis does not control when adherence to the prior decision requires “fundamentallyrevising its theoretical basis”).

Justice Stevens also discusses when he would be willing to overturn precedent

I am perfectly willing to concede that if one of our precedents weredead wrong in its reasoning or irreconcilable with the restof our doctrine, there would be a compelling basis for revisiting it.

Methinks this accurately describes Slaughterhouse.