Supreme Court Trip

Yesterday I had the rare privilege to go to our nation’s capital and meet with Justice Clarence Thomas. The trip was put together by the Yale Federalist Society and around 20-30 students attended.

Justice Thomas was very forthcoming, and allowed us almost two and half hours of question and answer time in one of the Supreme Court conference rooms, on any topic from his appreciation of Ayn Rand novels to his views on the dormant commerce clause (which, like most of his legal thought is both well reasoned and original). This was my second opportunity to meet with Justice Thomas (he spoke at Pepperdine last year), and I came away from this trip similarly impressed by what a great person he is, to say nothing of his judging.

However, the night before we were set to meet with Justice Thomas, the Supreme Court announced on its website that they would be scheduling a special session to hand down an opinion. Speculation immediately pointed to the Citizens United case, which had been pending for some time.

In order to take in the spectacle, one of my friends from the law school and I woke up at 4:30, got on the first metro train at 5:19, and arrived at the Supreme Court at 6:30 to wait in line for a spot in the Courtroom to hear the decision handed down. Although the building looks like a Greek Temple, the actual courtroom is quite small, so you often have to arrive very early to secure a spot.

Perhaps because of the late notice for the special session, we had arrived far earlier than necessary, and waited in the cold for over two and a half hours with a small group of similarly enthusiastic Supreme Court nerds. At the front of the line directly in front of us were a group of students talking far more about college basketball than would be expected for someone waiting in the dark to hear a judicial opinion handed down. My suspicions were proved well founded when four well dressed people appeared two hours later and paid these students for holding their position in the line. These people turned out to be the party Citizens United. We had a good conversation thinking about possible outcomes.

When we were all seated in the Courtroom I looked around and immediately recognized several important figures including Senate Minority Leader Mitch McConnell, Solicitor General (and former Harvard Law School Dean) Elena Kagan, and Deputy Solicitor General Neil Katyal. I’m sure I missed some other important figures, but then the Jutices filed in and got down to business.

(What follows is a breakdown of the Court’s decision. Not necessary to read unless you care about this sort of thing.)

The case, Citizens United, was about “Hilary The Movie” which a corporation wanted to air on video on demand in the thirty days before the Democratic Primary election. It was an anti-Hilary Clinton film, at a time when it was suspected that she would be the Presidential nominee of the Democratic Party in 2008. Citizens United was restrained from showing the film on demand by a court, which held that the film was considered corporate electioneering (AKA - spending of corporate money not to advance a particular viewpoint or issue, but to speak directly for or against a candidate for election) and was thus prohibited by certain provisions of the McCain-Feingold campaign finance reform act. The act prohibits spending out of the general fund of a corporation on electioneering within 30 days of an election (if the funds would have come out of a purely “political action committee” or “PAC” fund, it would not have infringed the act’s provisions), and also has certain disclosure and reporting requirements for corporate expenditures towards these electioneering practices.

Citizens United argued that these restrictions were an impermissible restraint on First Amendment rights. The case initially came before the Court last term, but the Court refused to rule on the case and instead asked for reargument on additional points not previously raised by the parties. After almost three years, Citizens United would finally get their decision.

Immediately, Chief Justice John Roberts gave the floor to Justice Kennedy, who read the majority opinion. This told those of us in the Court very little about the outcome, since Justice Kennedy could easily be on either side of this, as well as many other issues. Kennedy began by dismissing the possibility of deciding this case on narrow statutory grounds. This means that the Constitutional question of free speech would be decisive.

On the Constitutional issue, Kennedy wrote for the court majority that these provisions of the McCain-Feingold campaign finance reform act violated first amendment free speech principles. Two previous Court decisions to the contrary were therefore overruled. Although Citizens United won on this issue, Kennedy upheld the disclosure and reporting requirements, which will remain in force.

After the majority opinion, Justice Stevens addressed the court for the dissenters. In a lengthy statement (a preview of the over 200 pages of opinions in this case), Stevens listed five principal errors with the Majority’s approach to the Citizens United decision. Stevens ended by comparing the Court’s decision to an era of the Court’s history almost unanimously hated by legal scholars (the so-called “Lochner Era”). He also displayed rhetorical flourish, closing with the statement that of all the problems in today’s political system, few beyond the majority of this Court would list among them the lack of corporate money.

And with that, the decision was over. If you want to read the hundreds of pages of opinion yourself, you can at www.supremecourtus.gov. Otherwise, you can just take my word for it – the first of hopefully many trips to see the Supreme Court in action.