November 10, 2011
Stevens and Citizens United: Beyond the first 90 pages
What does John Paul Stevens, the author of the 90-page dissent in Citizens United, have to say about the case in his new memoir, Five Chiefs? Not much. Aside from a remark here and there, it seems Justice Stevens decided to let his dissent speak for itself. He framed his new memoir as an account of his experiences with five chief justices (Vinson, Warren, Burger, Rehnquist, Roberts), and it's a wonderful collection of observations and stories.
One of the few mentions of Citizens United comes when Justice Stevens discusses his arrival on the Burger Court, which he explains was when his new colleagues were busy drafting the opinion in Buckley v. Valeo. Although he didn't participate in that decision, he recalled: "my principal memory of my first weeks on the Court is one of extreme distaste for debates about campaign financing." He explained:
"That distaste never abated, and I have felt ever since that the Court would be best served by inserting itself into campaign finance debates with less frequency. That view may have had an impact on the unusually long dissent that I wrote during my last term on the Court against the Court's overreaching in the Citizens United case -- a case in which the Court essentially rewrote the law relating to campaign expenditures by for-profit corporations and unions in order to decide that a wealthy nonprofit corporation could use its assets to televise and promote a movie about Hillary Clinton wherever and whenever it wanted."
With a case description like that, it seems a little fire is still smoldering. But he doesn't give it expansive treatment and the overall tone of the book remains distinctly cordial.
The case briefly comes up again in a later chapter on Chief Justice Roberts, when Justice Stevens remarks that the chief justice's position in Citizens United prevents giving him a "passing grade in First Amendment law."
And, in a recent interview about the book (on NPR's Fresh Air with Terry Gross), Justice Stevens noted that narrower grounds for decision had been available in Citizens United, and remarked: "[t]he Court has held, I think incorrectly, that the First Amendment protects the right to use money just as though money were speech."
November 10, 2011 | Permalink