Politicking From the Bench

I promised a post on Jeffrey Toobin’s reconstruction for the New Yorker of the pre-history and history of the Supreme Court’s 2009 Citizens United decision, which bids fare to cast a very long shadow on U.S. elections for many years to come. But all I really want to do is to convince you to take the time to read it yourself. Yes, it’s very long, and parts of it may be a bit difficult for non-lawyers to navigate. But it really is essential reading, not just in terms of understanding Citizens United, but in grasping the revolutionary potential of the Roberts Court, particularly if its conservative bloc is augmented by a Republican president during the next four to eight years.

So let me whet your appetite with a brief precis of the cast of characters who brought us the Citizens United decision:

* Citizens United co-founder (along with Willie Horton-ad legend Floyd Brown) and longtime president, David Bossie, who first drew national attention as part of a Senate investigation of the trumped-up Whitewater case, and then worked for the notorious crank Dan Burton in a wide-ranging House fishing trip through all things Clintonian, managing to get fired by Burton at the insistence of Newt Gingrich after he got caught doctoring evidence. The “documentary” that was the subject of the entire Citizens United litigation was the fruit of Bossie’s ambition to make a lot of money while continuing his service to the right-wing Cause.

* Citizens United’s original attorney, James Bopp, whose roots were in the anti-choice movement, traditionally bitter opponents of any and all restrictions on campaign financing (as you might expect from people who think their opponents are today’s Nazis, carrying out a new Holocaust). Bopp probably gained his greatest national notoriety as the sponsor of a 2009 RNC resolution to refer to the “other party” as the “Democrat Socialist Party.” It failed, but was most definitely the wave of the immediate future in conservative agitprop.

* Bopp’s successor once the case made it to the Supreme Court, former Solicitor General Ted Olson, the successful attorney in Bush v. Gore, the only recent decision matching Citizens United in its breaktaking audacity and immediate consequences. As Toobin explains, even a seasoned legal warrior like Olson (now probably best known as the Koch Brothers’ attorney) had to be schooled by Chief Justice Roberts in how to reframe what was originally a narrowly focused appeal to a FEC ruling into an opportunity to all but destroy campaign finance laws dating back more than a century.

* Justice Anthony Kennedy, described by Toobin as representing a radical departure from his swing-vote predecessor, the minimalist Sandra Day O’Conner, acting not as a “moderate” but as “an extremist–of varied enthusiasms.” Kennedy wrote a sweeping concurrence aiming at the destruction of campaign finance laws even before the plaintiffs were asking for that action–a concurrence that ultimately became the majority opinion thanks to:

*Chief Justice John Roberts, the central character in Toobin’s tale, who saw the opportunity for a radical decision and carefully led plaintiffs and justices alike to that destination.

Toobin doesn’t make any exact predictions for where Roberts will take “his” Court in the future, but usefully explains the alarming precedent of the Court’s Lochner era, in which corporations were endowed with far more inalienable rights than anyone in their employ via an aggressive substantive due process doctrine that would have made later liberal “activists” blush with embarassment. This is the period when the Court tried and for a while succeeded in thwarting the New Deal, until FDR’s threat to pack the Court led to a strategic surrender (a moment, BTW, viewed by today’s conservative judicial radicals as a sort of black-robed version of Chamberlain at Munich).

Thus, even if campaign finance issues bore you, the Toobin account is a must-read if only for its glimpse of what may come next. I came away convinced that a conservative Court majority as radical as today’s, led by an activist as crafty as Roberts, is entirely capable of overturning the Patient Protection and Affordable Care Act with nary a guilty moment. And perhaps that’s why Jeffrey Toobin was so quick to conclude after the “ObamaCare” oral arguments that this is exactly where they are headed.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.