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

  “If the First Amendment has any force,” Kennedy concluded, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

  McCain-Feingold and several Supreme Court precedents had to be overruled. The Constitution required that all corporations, for-profit and nonprofit alike, be allowed to spend as much as they wanted, any time they wanted, in support of the candidates of their choosing.

  To John Paul Stevens, however, Citizens United was much more complicated, with immense implications for American politics.

  Stevens would turn ninety shortly after the Citizens United decision came down. Better than most justices, he knew the potential cost of staying too long on the bench.

  Franklin Roosevelt named William O. Douglas to the Court in 1939, and he served with cantankerous brilliance well into a fourth decade. In 1974, however, Douglas had a stroke, and he became physically and mentally disabled. Douglas refused to retire, and his colleagues had to wage an awkward campaign to persuade him to bow to the inevitable. When Douglas did finally leave the Court the following year, Gerald Ford appointed Stevens to take his place. Stevens wanted to avoid a similarly unseemly end to his own career and deputized his closest friend among the justices, David Souter, to let him know when it was time to go. It seemed like a reasonable plan. After all, Souter was nearly two decades younger than the man known to all at the Court as JPS.

  But then Stevens outlasted Souter. JPS was a remarkable physical specimen. He still played tennis on many mornings. (A frequent golfer, too, he practiced putting on the carpet in his chambers.) For more than twenty years, Stevens and his wife had spent a good deal of time at their condominium in Fort Lauderdale, but he remained deeply engaged in the work of the Court. During the eighties, Stevens was nicknamed the FedEx justice, because he did so much work from Florida; later, he used e-mail. By the new millennium, Stevens’s age, and his genial bearing, had earned widespread affection. Stevens had a midwesterner’s inveterate politeness, which manifested itself during oral arguments. He would begin speaking by saying, “May I ask you a question?” or “May I ask you this?” Frequent advocates found this tic amusing and endearing, a little like his inevitable bow tie.

  In light of all this, it was possible, by the time of Citizens United, to think of Stevens as a kind of docile old uncle. After all, he was thirteen years older than Ginsburg, his closest contemporary, and he belonged to an entirely different generation than the rest of the Court. (Sotomayor was almost two generations younger than Stevens.) But Stevens was no harmless codger. He was, rather, a ferocious competitor who hated to lose. Life made him a tough combatant.

  In the early part of the twentieth century, the Stevenses were prominent citizens of Chicago. The justice’s grandfather James Stevens had gone into the insurance business, and, with the profits, he and his sons Ernest and Raymond bought land on South Michigan Avenue, where they built what was then the biggest hotel in the world, with three thousand rooms. The Stevens Hotel opened in 1927 and featured a range of luxurious services, including a bowling alley and a pitch-and-putt golf course on the roof. There was a big, stylized “S” over the main entrance.

  The Depression hit the family hard. As chronicled in John Paul Stevens: An Independent Life, a biography by Bill Barnhart and Gene Schlickman, questions arose as to whether the Stevens family had embezzled funds from the insurance company to prop up the hotel. In January 1933, the Chicago Herald-Examiner reported, “The Stevens children were sent to bed so they could not see their father arrested.” After Ernest Stevens was released on bail, according to the biography, four men brandishing a submachine gun, two shotguns, and a revolver ransacked the Stevens home in search of cash. Ernest and his wife, Elizabeth, and two of their children, William, age fifteen, and John, age twelve, as well as the family cook and two maids, were herded upstairs and held in a bedroom after one of the boys was forced to open a safe in the first-floor library. It remains unclear whether the intruders were police officers or gangsters (or both), but they found no secret stash of cash.

  Later in 1933, the patriarch, James, had a debilitating stroke. A few days afterward, John’s uncle Raymond committed suicide rather than endure the disgrace of a criminal prosecution. Ernest Stevens thus had to go to trial alone, and in the toxic environment of the Depression he was swiftly convicted. He faced ten years in state prison. Deliverance came in 1934, when his appeal reached the Illinois Supreme Court and the justices unanimously reversed his conviction. “In this whole record there is not a scintilla of evidence of any concealment or fraud attempted,” the decision said. Still, the family never recovered its former wealth, and it lost control of the hotel. (It is now known as the Chicago Hilton and Towers; the “S” is still there.)

  John Stevens rallied from the trauma of his teenage years and excelled at the Lab School of the University of Chicago. (Sasha and Malia Obama would later be students there, and the Obamas lived about a mile away from where Stevens grew up, on the city’s South Side.) In 1937, he enrolled at the university, where he was the editor of the newspaper, a stalwart of the tennis team, the head class marshal, and a member of Phi Beta Kappa. Toward the end of his undergraduate career, the dean of students, Leon P. Smith, rather mysteriously suggested that he take a correspondence course. Stevens did. He later learned that Smith was an undercover naval officer who had been asked to see if he could get students interested in cryptography. At the end of November of 1941, the navy sent Stevens a letter saying that he had completed enough of the course that he was eligible to apply for a commission. Stevens enlisted the day before Pearl Harbor and spent most of the war at that navy base in Hawaii, analyzing intercepted Japanese radio transmissions.

  After being discharged in 1945, Stevens raced through Northwestern Law School in two years, graduating as valedictorian. (He also acquired a new name. A professor told him that every lawyer should have something unique about them. Stevens thought his name, John Stevens, was particularly boring, and decided always to use his middle name, at least professionally.) John Paul Stevens earned a Supreme Court clerkship with Justice Wiley B. Rutledge, an FDR appointee whom Stevens always revered. When Stevens’s colleagues wanted to needle him, they would cite one of Rutledge’s opinions against him. (Kennedy referred to Rutledge three times in his Citizens United opinion.)

  After his clerkship, Stevens returned to Chicago and took a job at one of the city’s first religiously integrated law firms. In time, he became a renowned antitrust litigator. He and his wife, Betty, had four children, two of them adopted, and he took up flying a private plane as a hobby, which also enabled him to visit clients around the Midwest. Stevens probably would have lived out his life in prosperous obscurity if one of Chicago’s periodic corruption scandals hadn’t intervened. A local character, a wheelchair-bound frequent litigant named Sherman Skolnick, alleged that two justices on the Illinois Supreme Court had taken bribes in a political corruption case. The court formed an investigatory committee, which appointed Stevens as its counsel. In a series of dramatic hearings in 1969, Stevens established that the two judges had indeed taken bribes. Both resigned, and Stevens became a public figure. The next year, Senator Charles Percy, an Illinois Republican, put Stevens up for a judgeship on the Seventh Circuit. Richard Nixon agreed, and, in 1970, Stevens began his judicial career.

  In 1974, Gerald Ford, seeking to demonstrate a renewed commitment to ethics at the Justice Department, named Edward H. Levi, the dean of the University of Chicago Law School, as attorney general. When, the following year, Douglas left the Supreme Court, Levi pushed for Stevens, his fellow Chicagoan, whose anticorruption credentials looked especially desirable in that post-Watergate moment. Ford nominated Stevens, who was then fifty-five, on November 28, 1975, and the Senate unanimously confirmed him just nineteen days later. (Soon after moving to Washington, Stevens divorced and remarried. His second wife, Maryan Mulholland Simon, an old friend from Chicago, was a dietitian, whose ministrations Stevens cred
ited for his longevity.)

  Like Souter and his mentors, Percy and Levi, Stevens was a moderate Republican. In his early years on the Court, he settled into the ideological center, which was bounded, on the left, by William Brennan and Thurgood Marshall and, on the right, by Rehnquist, then an associate justice, and Chief Justice Warren E. Burger. Stevens’s voting record was roughly in line with those of fellow Republican appointees like Potter Stewart, Lewis Powell, Harry Blackmun, and O’Connor. But as they were replaced by more contemporary Republicans, Stevens often found himself described as a liberal. In some areas, he did move to the left, especially on the death penalty and racial issues. But his evolution into the leader of the liberal wing was mostly the result of the rest of the Court moving so far to the right.

  Stevens became the senior associate justice after Blackmun stepped down in 1994, and over the next decade Stevens remained confident that he could pull together majorities for his side. Toward the end of the Rehnquist Court, Stevens had a string of good years, as O’Connor became a frequent ally, especially on issues relating to Guantánamo. Kennedy, too, joined Stevens’s side on gay rights and death penalty cases. More often than his liberal colleagues, Stevens would vote to hear controversial cases. Ginsburg and Breyer, fearing disaster if the Court took these cases, tended to vote not to take them in the first place.

  But John Roberts and Samuel Alito sapped John Paul Stevens’s optimism. In under five years, the pair of Bush appointees, joined by Scalia, Thomas, and usually Kennedy, had overturned or undermined many of the Court’s precedents. Unlike his new conservative colleagues, Stevens, like Souter, was a classic common-law judge who thought that the law should develop slowly over time, with each case building logically on its predecessors. The course of Citizens United captured everything that offended Stevens most about the Roberts Court.

  In some ways, Stevens’s greatest objections were procedural. Like Ginsburg (and almost no one else), Stevens had a deep fascination for the mysteries of federal procedure. He was happy to wade into the subject on his own for hours. (Stevens was the only justice who generally wrote his own first drafts of opinions.) So it was especially galling that the Court converted Citizens United from a narrow dispute about a single provision in McCain-Feingold into an assault on a century of federal laws and precedents. To Stevens, it was the purest kind of judicial activism.

  Or, as he put it in his dissenting opinion, “five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” The case could and should have been resolved by simply ruling on whether McCain-Feingold applied to Hillary: The Movie, or at least to nonprofit corporations like Citizens United. And here Stevens aimed a dart not at Kennedy but at the chief justice: “The parties have advanced numerous ways to resolve the case that would facilitate electioneering by nonprofit advocacy corporations such as Citizens United, without toppling statutes and precedents.” Which is to say, the majority has transgressed yet another “cardinal” principle of the judicial process: “If it is not necessary to decide more, it is necessary not to decide more.” Stevens was quoting Roberts’s oft-cited line from his tenure on the D.C. Circuit—and throwing it back in his face. In essence, Stevens was saying that Roberts was acting not like a mere umpire but like an imperious commissioner of baseball.

  Stevens was just warming up. His dissent was ninety pages, the longest of his career. He questioned every premise of Kennedy’s opinion, starting with its contempt for stare decisis, the rule of precedent. He went on to refute Kennedy’s repeated invocations of “censorship” and the “banning” of free speech. The case was merely about corporate-funded commercials shortly before elections. Corporations could run as many commercials whenever they liked during other periods, and employees of the corporations (by forming a political action committee) could run ads at any time.

  Stevens was especially offended by Kennedy’s blithe assertion that corporations and human beings had identical rights under the First Amendment. “The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare,” Stevens wrote. “Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.” Congress and the courts had drawn distinctions between corporations and people for decades, Stevens wrote, noting that, “at the federal level, the express distinction between corporate and individual political spending on elections stretches back to 1907, when Congress passed the Tillman Act.”

  Stevens was almost amused at Kennedy’s fear that the government might regulate speech based on “the speaker’s identity.” As he wrote, “We have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees.” Stevens, a former navy man, could not resist a generational allusion: he said Kennedy’s opinion “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.” (Stevens’s law clerks, having never heard of Tokyo Rose, who made propaganda broadcasts for the Japanese, implored him to remove the dated reference, but he insisted on keeping it.)

  Stevens’s conclusion was despairing. “At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt,” he wrote. “It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.” It was an impressive dissent, but that was all it was. Anthony Kennedy, on the other hand, was reshaping American politics.

  At the stroke of ten, on the morning of Thursday, January 21, 2010, the nine justices emerged from behind the red curtain and the chief justice introduced the sole order of business for the day. “In case 08-205, Citizens United versus the FEC, Justice Kennedy has the opinion of the Court,” Roberts said.

  Kennedy took about ten minutes to announce the Court’s judgment. Kennedy had been a law teacher even longer than he’d been a judge, and he relished these moments to define, in layman’s terms, what the justices had decided. Only a handful of people ever had the chance to see these performances—the Supreme Court seats about five hundred people—and the words in the opinions, not the words from the bench, represented the judgment of the Court. Nevertheless, Kennedy took these occasions seriously, as a chance to put in his own words what he sometimes called “the poetry of the law.” At the climax of his brief summary, Kennedy said: “The Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear. It uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”

  In a case of this magnitude, there was never any doubt that Stevens would read his dissent from the bench. He didn’t read all ninety pages, but he still prepared a twenty-minute stem-winder. For once, though, the news was not what Stevens said but how he said it. He stumbled frequently, skipped words, and at times was hard to understand (as when he said, “As the corp, court has long resembled …”). For the first time in public, Stevens looked his age. He charged that the way the majority had handled the case was even worse than the legal outcome. “There were principled, narrower paths that a Court that was serious about judicial restraint could have taken,” he said. “The path it has taken to reach its outcome will, I fear, do damage to t
his institution.” After thirty-five years on the Supreme Court, it was clear that John Paul Stevens was about to walk away from a place he no longer recognized.

  15

  “WITH ALL DUE DEFERENCE TO SEPARATION OF POWERS”

  At the White House, the tensions between Greg Craig, the president’s counsel, and Rahm Emanuel, his chief of staff, festered throughout 2009. Likewise, the concerns about Cassandra Butts, Craig’s deputy and ostensibly the person assigned to screen potential judges, grew more widespread. By fall, both were on their way out. In November, Butts left the White House for a job at the Millennium Challenge Corporation, a Bush-era foreign aid agency. To facilitate a graceful exit for Craig, Obama offered to nominate him to the D.C. Circuit. (Nearly a year into the administration, the president had still not filled a vacancy on the second most important court in the country, a fact that itself illustrated the dysfunction in the counsel’s office.) But Craig turned down the judgeship and returned to private law practice at the end of the year.

  In December, a few weeks before Citizens United came down, Robert Bauer took over as the new White House counsel. Just as Craig had devoted much of his life to human rights, Bauer had his own cause: campaign finance. Bauer had been in private practice for thirty years, but at his law firm he helped virtually every major Democratic politician navigate the complex rules about how campaigns should be run and paid for. In a way, Bob Bauer was the Jim Bopp of the Democratic Party. In the nineties, Bauer was a top outside adviser to Richard Gephardt, the Democratic leader in the House, as well as Tom Daschle, the party’s leader in the Senate. When Obama was elected to the Senate in 2004, Bauer became his personal attorney.