The Roberts Court: The Struggle for the Constitution (32 page)

The Roberts Court’s line of cases involving the confrontation clause fails to grab front-page headlines, but the cases have significant practical impact on the criminal justice system. Scalia and Kennedy battle almost every term over these cases. For Scalia, the cases demand application of his original meaning interpretation of the Constitution. For Kennedy, who is rarely an originalist, they require an examination of history, text, and consequences.

Kennedy looks for cases coming into the Court for opportunities to restrict or narrow what
Crawford
has wrought, and Scalia tries to keep those cases at bay, say former clerks.

“This drives [Kennedy] batty,” said one former Kennedy clerk. “He believes this is wrong and this affects every prosecution of most crimes.”

Ashcroft v. Iqbal
generated greater, early attention on the term’s docket, primarily because of its facts. Javaid Iqbal, a Pakistani Muslim living in New York, was among more than 1,000 people swept up in the post-September 11, 2001, arrests and detained by federal officials. He sued, claiming that he was targeted because of his race, religion, or national origin, in violation of the First and Fifth amendments. He also charged that he was detained in harsh and restrictive conditions. Iqbal claimed that Attorney General John Ashcroft and FBI director Robert Mueller knowingly adopted and condoned that unconstitutional policy.

Government lawyers unsuccessfully moved to dismiss the lawsuit. The Roberts Court, in a 5–4 decision by Justice Kennedy, reversed. The majority, which included Roberts, Scalia, Thomas, and Alito, held that Iqbal had failed to plead sufficient facts in his lawsuit to show that Ashcroft and Mueller adopted the arrest policies for the purpose of discriminating on account of race, religion, or national origin.

Suddenly, a potentially fascinating case about the post-September 11 liability of high-ranking government officials had morphed into a rather dry procedural decision. What kind of facts does someone have to put in his lawsuit in order to overcome a motion to dismiss the lawsuit?

For many years, the federal rule had been that a lawsuit—a complaint—had to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” It was a very low hurdle designed essentially to keep lawsuits in court, not out. The lawsuit’s merits would be tested later in the process, during the discovery phase or through a trial.
Iqbal
changed the rule, and no party in the case had asked the Court to make that change.

Someone who files a lawsuit must plead sufficient facts for a court to conclude that it is “plausible” that the person suing is entitled to relief, wrote Kennedy, imposing a much higher hurdle on plaintiffs in lawsuits. The decision had huge ramifications for anyone filing a civil lawsuit.

Like the
Melendez-Diaz
decision, the
Iqbal
decision had a forerunner. The Roberts Court had toughened the pleading requirements a year earlier in
Bell Atlantic Corp. v. Twombly
, a case stemming from an antitrust lawsuit brought by consumers. The decision surprised the legal world by overturning a 1957 ruling heavily relied upon by federal courts. At the time, it was not clear whether
Twombly
, a 7–2 decision, applied to all lawsuits or just to the type of lawsuit at issue in that case—an antitrust suit. The
Iqbal
decision made clear that the higher pleading standard applied in all civil cases.

Justice Souter, who actually authored
Twombly
, led the dissenters in
Iqbal
and said the Kennedy majority had misapplied his
Twombly
decision.

Under the
Iqbal
standard, federal courts have much more discretion to dismiss lawsuits at the very beginning of a case if they think the allegations are not plausible—whatever “plausible” means to the particular judge. The decision was considered a boon to corporate defendants, who wasted no time in raising
Iqbal
as a defense to consumer, civil
rights, and other lawsuits. Two months after the ruling, federal courts had cited
Iqbal
more than five hundred times in federal cases, according to a
New York Times
report.

Iqbal
and
Twombly
would become arrows in the quiver of predominantly liberal special interest groups who had begun building a political case that the Roberts Court was a pro-corporate Supreme Court. But the sharpest arrow was yet to come: the decision in Citizens United’s case.

As it was filed at the Court that term, Citizens United’s challenge, on the surface, had none of the signs of a potential landmark ruling. Election law experts and others who had followed closely the Roberts Court’s few campaign finance decisions, however, saw the potential.

Still, as the University of California’s election scholar, Richard Hasen, has noted, the Roberts Court had never openly or formally overruled any prior campaign finance decisions—until
Citizens United
.

And Citizens United initially was not asking the Roberts Court to overrule any campaign finance decisions. James Bopp, its lawyer, intentionally framed a narrow case, explaining, “If you don’t make a narrow argument, you’re going to lose [the justices]. I think they’re quite serious about the Court having restraint.”
¹

The strategy never included asking the Court to overrule the 2003
McConnell
decision upholding the McCain-Feingold Act or the 1990
Austin
decision’s approval of the ban on corporate independent spending, he added.

“But they always had the option as they always did,” said Bopp. “We were hoping in
Planned Parenthood v. Casey
that they would overturn
Roe v. Wade
. If they’re being asked to apply a precedent, the validity of the precedent is always before the Court.”

The disclosure requirements in the McCain-Feingold law were the primary target in the appeal. Bopp had argued that the ads for
Hillary: The Movie
were protected political speech because they did not contain an “appeal to vote” or a clear call for action—the test constructed by the Roberts Court majority in the
Wisconsin Right to Life
case. He also
argued that the movie itself could not be treated as “broadcast ads” subject to the law’s ban on financing from general treasury funds. A movie, he contended, was “categorically different” from the broadcast ads that influenced Congress in enacting the McCain-Feingold law.

Citizens United’s “animating concern was the reporting of their contributors,” said Bopp, explaining that Bossie and Boos believed that compelled disclosure of donors to the movie project would subject the donors to retaliation by political opponents.

The Federal Election Commission, represented at the time by Solicitor General Gregory Garre, urged the Roberts Court to dismiss the appeal or to affirm the lower court decision. That decision “rests on a straightforward application of settled legal principles,” Garre told the justices. Garre thought there was a chance that the Court would not take Citizens United’s appeal because federal law had required disclosure of campaign financing since 1910, and the Supreme Court had upheld the constitutionality of past and present disclosure requirements.

Garre also challenged Citizens United’s description of the movie. He said it was clearly “express advocacy” because it attacked candidate Clinton’s character and fitness. The law did not exclude such movies from regulation, he said.

But three months after Bopp filed Citizens United’s case in the Supreme Court, the justices in November agreed to hear it and scheduled arguments for March 24, 2009. A week after the Court’s announcement, Citizens United’s David Bossie dumped Bopp.

Earlier in October, Bossie had attended an event at the Capitol Hill Club where former Bush solicitor general Theodore Olson of Gibson, Dunn & Crutcher was being named “Republican Lawyer of the Year” by the Republican National Lawyers Association.

“I’m sitting there, thinking about my case,” recalled Bossie. “Every Republican lawyer in town is there. Bill Kilberg of Gibson Dunn gets up to introduce Ted and says Ted Olson has won
X
number of cases and he’s the winningest Supreme Court lawyer. I’ve known Ted forever and I said to myself, ‘How is it I am not in Ted Olson’s hands?’ ”

The next day, Bossie went to Mike Boos and suggested replacing Bopp with Olson.

“There was no ill reflection on Jim [Bopp],” he added. “When you change battlefields, you change generals. I wanted to feel we were in the right hands to go forward at that level. It’s not about, ‘Oh well, Jim got us here; we owe it to him.’ Look, if you get to the Super Bowl with your second-string quarterback and your first stringer comes off the injured reserve list, you put him back in. Not that Jim is second string. When you’re at the big leagues, you have to make very dispassionate decisions.”

After discussing the pros and cons of switching lawyers, Bossie and Boos decided to approach Olson. “I had met with Ted years before and told him my idea for the case; I don’t think he took me very seriously,” recalled Bossie. However, Olson did now, said Bossie, and he agreed to take the case. Bossie offered Bopp the co-counsel or second chair position; Bopp refused and withdrew from the case.
²

Olson is indisputably the “dean” of the so-called Supreme Court bar, a growing group of lawyers who appear frequently in cases before the justices. He was the mastermind of the case for George W. Bush in
Bush v. Gore
and Bush appointed him solicitor general—the government’s top appellate lawyer—after he took over the Oval Office. Olson also is one of the top appellate lawyers in the nation and commands an hourly rate of more than $1,200. Highly regarded, well liked, and plugged into the Republican establishment, Olson has the kind of stature that has allowed him to survive the scorn of the party’s extreme right wing because of his constitutional attack on California’s ban on same-sex marriage.
³

Citizens United’s new lawyer also was no stranger to the legal issues surrounding the McCain-Feingold Act. It was Olson, as Bush solicitor general, who led the successful defense of the act’s constitutionality in 2003 from the attack brought by a fellow Republican, Senator Mitch McConnell of Kentucky. Now Olson would be the attacker, and the strategy in the Supreme Court would change.

“We sat down and decided you really had to go for the heart of the
case, which is the constitutionality of this prohibition itself,” recalled Olson. “We wanted to make the narrow arguments too—there were four or five—because we wanted to win the case; but we felt the best, the ultimate way to win the case was to go after the prohibition on its face—in other words, to take the whole thing on.”
⁴

Olson was aware that Scalia, Thomas, and Kennedy in the
Wisconsin Right to Life
decision had said they would strike down the ban on corporate spending in
McConnell
and the 1990
Austin
decision. And the reasoning of the majority in the
Austin
decision, he said, was “very mushy.”

But there was a problem in pushing the Court to overrule those decisions. Citizens United had dropped the facial challenge from its lawsuit in the lower court. The government never had an opportunity to respond to that challenge, and the court never built a record or made a ruling on it. So the facial constitutionality issue was not before the justices.

The justices generally reject attempts by lawyers to raise new issues after the Court has granted review on a specific issue.

“We had to be careful how we wrote the brief,” said Olson. “It took a lot of work to make sure we didn’t anger the Court.”

There was concern with how far Roberts would be willing to go in terms of overruling the earlier decisions, recalled Boos. “That also was one of Jim Bopp’s main concerns. The chief justice had just one year earlier authored the
WRTL
opinion in which they didn’t go all the way. By overruling
Austin
, you were essentially taking the
WRTL
opinion and rendering it moot. We wanted options on the table that we could win if it turned out the majority was not prepared to go that far.”

In his main brief to the Court, Olson flipped the emphasis in Citizens United’s initial appeal from the disclosure requirements to the movie. He attacked the constitutionality of the corporate funding ban as applied to
Hillary: The Movie
.

“Although Senator Clinton’s candidacy was the backdrop for the 90-minute documentary, neither the movie’s narrator nor any of the individuals interviewed during the movie expressly advocated her election or defeat as President,” he argued. “The movie instead presents a
critical assessment of Senator Clinton’s record as a U.S. Senator and as First Lady in order to educate viewers about her political background.”

The interest in preventing quid pro quo corruption and the appearance of corruption, which justifies the electioneering ban, he said, is “categorically inapplicable” to feature-length movies distributed through video on demand. Viewers must affirmatively request those movies, he explained, and so the movies are “far less likely than broadcast advertisements to reach and persuade undecided voters and thereby influence the outcome of an election.”

Olson then, in just two paragraphs, attacked the 1990 ruling in
Austin v. Michigan Chamber of Commerce
upholding a state ban on the use of corporate treasury funds for independent spending. That decision, he wrote, which held that the government had a compelling interest in preventing the “corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form,” was wrongly decided. It should be overruled, he charged, because it was “flatly at odds with the well-established principle that First Amendment protection does not depend on the identity of the speaker.”

Regardless,
Austin
’s reasoning, he added, does not apply to
Hillary: The Movie
because it was funded overwhelmingly by donations from individuals, not corporations.