Questions for Jeffrey Toobin (Citizens United)

1. Did provisions of the McCain-Feingold legislation allow for the banning of books? What was the primary criticism that the liberal justices had with the majority decision related to procedure? What difference on the Court was the key to upholding McCain-Feingold in the McConnell case in 2003 just six years earlier? Justice Stevens was considered a moderate Republican when he joined the court, but the leader of the liberals when he retired. According to Justice Stevens, why is this? Questions for Jeffrey Toobin (Citizens United)

2. Burger Court 1975 Roberts Court 2010 Justice Stevens retires and the Citizens United ruling ; 34 years of shifting to the right

3. Confirmed 98-0 Brilliant and hard-working Considered a moderate when appointed by Gerald Ford Maintains that he never changed his worldview from that of a moderate – the court, and the country had shifted to the right. When he retired he was considered “The Chief Justice of the liberal Supreme Court.” Best known for scathing dissents in last few years. Opinion, concurrence, dissent – in part. Cornell Law website. Justice stevens

4. 4-4 split with Kennedy as swing vote, Stevens was often able to swing him his way Recent dissents often expressed a concern regarding the legitimacy of the court and the US judicial system. Last 10 years

5. Bush v. Gore (2000) • “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.” • Displays lack of confidence in competency of state judges • Disenfranchisement of uncounted ballots • Supreme Court’s lack of jurisdiction Major dissents

6. Parents Involved in Community Schools v. Seattle School District No. 1 (2007) • De jure (concerning law) vsde facto (concerning fact) • Stevens concurred with Breyer, Souter, and Ginsberg that a reading of Brown v BOE (1954) and the Equal Protection clause to allow resegregation is a change in direction and a disregard for precedent • Stevens added, “The Court has changed significantly since it decided School Comm. of Boston in 1968. It was then more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no Member of the Court that I joined in 1975 would have agreed with today’s decision.” Local perspective

7. Stevens wrote a 90 page dissent that he read aloud at the court the day the decision was announced. “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. 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.” Citizens United v. Federal Election Commission (2010)

8. “The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.” Stevens believed the ruling was detrimental to the electoral process, and therefore, to democracy. He was also worried about public perception of the court as an objective arbiter. • “Essentially, 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 ruling was outside the scope of the case as presented. • Uses NAACP v. Button (1963) to justify decision. • Do we see a difference between NAACP in 1963 and Goldman-Sachs today. Is such a comparison appropriate, a stretch, or intellectual dishonesty?

9. Recent decisions before the Court have been less hospitable to civil rights and more willing to rule in the favor of business interests • Compare to Danziger’s definitions regarding Conservatism. • Some superior to others. Superior should be in charge. • Family, church and government should enforce traditional values. • Foolish and dangerous to seek equality, undermines liberty. “Change in order to preserve” • Given a definition of a Conservative worldview, do you believe it has room for equality before the law? Shift of the court

10. The old textbook started with talking about the Citizen’s United v. FEC (2010) case. This was a case that questioned the constitutionality of the Bipartisan Campaign Reform Act which had been upheld only 7 years earlier in McConnell v. FEC (2000). The inclusion of Justice Sandra Day O’Connor in McConnell v. FEC (2003) and her absence in Citizen’s United v. FEC (2010) substantially altered the role of money in the US electoral process. “When asked about the Court’s opinion in Citizen’s United, O’Connor expressed obvious displeasure, saying that if reporters wanted her opinion on campaign financing, they should read the Court’s opinion in McConnell.” (American Government, 2011) Sandra Day o’Connor

11. The decision undermined any remaining legislation that limited economic power in determining our elected officials. Robert Dahl spoke of capitalism and democracy pushing in opposite directions. Is this court case an example of how these forces oppose each other? Citizens united

12. Textbook talks about polls showing 62% support for Citizen’s United. Victory Enterprises selling their polling services to the highest bidder. Executive officers are all active in Republican campaigning. Poll is then echoed in the conservative media. http://abcnews.go.com/images/PollingUnit/1102a6Trend.pdf Citizen’s United ABC – Washington Post poll

13. Public Agrees With Court: Campaign Money Is "Free Speech" Campaign donations as free speech – 57% Same rules should apply to individuals, corporations, and unions – 55% Government place limits on donations of individuals – 61% Government place limits on donations of corps and unions – 76% http://www.gallup.com/poll/125333/Public-Agrees-Court-Campaign-Money-Free-Speech.aspx?CSTS=alert Gallup poll

14. Liebeck v. McDonalds 79 year old woman Received 3rd degree burns, required skin grafts and 8 days of hospitalization, offered to settle out of court for actual costs and future costs for $20,000. McDonalds offered $800. Jury found the corporation willfully negligent as it has had 700 similar complaints and has not addressed the issue. Executives came off as arrogant when giving testimony. Punitive award of $2.7 million in damages is two days of coffee sales in the US. Total damages were reduced by the court to $640,000. Frivolous lawsuits?

15. A group that seeks to make inroads on a specific policy will carefully craft a specific case in order to address a single provision, rather than have it dismissed on other grounds. The NAACP and its Legal Defense Fund were very effective in this regard. Test cases Plessy v. Ferguson (1896) Had the case been simply a clear case of “separate but equal” the Court would likely not have heard it. Because early briefs indicated that the plaintiff might argue on the question of a legal definition of what is meant by black (Plessy could “pass” as white) the Court chose to hear the case. Plessy’s lawyers then chose to pursue the issue solely on the question of whether “separate but equal” was unconstitutional under the 14th Amendment.

16. Brown v. BOE (1954) The Brown case was unique in that there was no claim to inequality in facilities or faculty. Brown was argued on the idea that segregation itself was discriminatory. The Freedom Riders: A series of cases where college students rode across the South on buses utilizing the Interstate Commerce Act to advance issues of desegregation. By focusing on federal laws rather than state laws, the LDF did some venue-shopping to move from an unfriendly political arena to a friendly one. Test cases

17. A check of the executive on the judiciary is their ability to appoint federal judges. This is a substantial power that affects society much longer than the term of the president. By preventing appointments through the use of filibusters, the Senate takes this power away from the president and transfers it to themselves. The president is normally elected by a majority of the citizens. The Senators who veto the president’s appointments may be elected by a minority. Political appointees

18. A jurist should be the best and the brightest, however, Chief Justice Roberts points to an issue that is faced by all levels of bureaucracy. It is difficult to attract talent to government service when it pays a tiny fraction of what can be earned in the private sector, particularly when a catastrophic illness later in life can bankrupt moderate incomes. Judicial compensation

19. An advisory opinion is telling the government ahead of time how the Court would rule on the legality of proposed policies or legislation. The Supreme Court will not do this, but other High Courts in other countries have. The Supreme Court cannot identify every potential eventuality of the implementation or avoidance of a certain policy. Ruling on vague descriptions of a broad law is very different from ruling on the concrete facts of a specific case. The Court could give an advisory opinion that upholds the legality of the law, and then be stuck with this previous opinion. This would tie their hands in regards to ruling on specific cases. Advisory opinion

20. Court of original jurisdiction – Appellate court – high court. Issues concerning state laws work through the state court system – federal laws through the federal system. The specifics of a civil court case determine jurisdiction I.E. a dispute between citizens of different states involving more than $75,000. State Supreme Courts are usually the end of the line for state issues unless the case involves a Constitutional question or there is significant disagreement between state courts regarding interpretation. Three tiered system & jurisdiction

21. Attorneys need to use discretion in determining priorities. When this system becomes politicized, these attorneys could be going off on a number of witch hunts. The Bush Administration fired 8 US Attorneys for failure to perform (pursue the types of cases the Administration prioritized). These attorneys investigated allegations of corruption by Democratic government officials and declined to prosecute. Reagan and Clinton actually fired every US attorney when entering office. “Attorney General Eric Holder wants federal prosecutors to avoid mandatory minimum sentences for some nonviolent drug offenders, saying prisons are overcrowded 'for no good law enforcement reason.‘” Richey, W (2013) CS Monitor US attorneys and discretion

22. Deals with administrative law and the limits of regulatory power for federal agencies. This is where the judiciary provides a check on the bureaucracy. A pro-business judge in this court has the potential of rolling back federal regulations across the board The DC court is the most common stepping stone for Supreme Court justices. This is a place where it becomes obvious how a judge sits ideologically on the question of the government’s right to regulate industry. There are currently four justices of the Supreme Court who were judges of the DC Circuit: Chief Justice Roberts, Thomas, Scalia, and Ginsburg In June of 2013 President Obama nominated three justices to this Court to fill vacancies. Republicans in the Senate have filibustered these nominations and have pushed for legislation to reduce the number from 11 to 8 justices. This has been referred to as a reverse-packing of the Court. http://tpmdc.talkingpointsmemo.com/2013/08/harry-reid-filibuster-showdown-judges.php DC Circuit Court of Appeals

23. Precedent is intended to make the actions of the judiciary predictable. Individuals and their attorneys, recognizing the likely outcome of litigation, will resolve their issues without necessarily going to court. With a polarized society and an equally polarized judiciary, outcomes become less predictable. “at times judges carve out new ground and ignore, decline to follow, or even overrule precedents to reach a different conclusion.” We have already discussed two cases where the Supreme Court overruled itself in a relatively short period of time; McConnell v. FEC (2003) and Citizen’s United v. FEC (2010), and Bowers v. Hardwick (1986) and Lawrence v. Texas (2003). According to the textbook, this lack of predictability is why we have so much litigation in the US today. Precedent and stare decisis

24. The current Supreme Court is made up of 5 conservative justices, including Chief Justice John Roberts, and 4 liberal justices. 5-4 decisions are commonplace and have been in recent years as conservative justices have often been replaced with conservative justices and liberal justices with liberal ones. The retirement of Sandra Day O’Connor marked a major shift in the makeup of the Court. The current court

25. The Supreme Court does not hear all cases presented to it. They select the cases that they will hear through the “rule of four.” If four of the justices vote to hear a case, it is granted a writ of certiorari. • Most cases heard involve: • The federal government asking for review • Conflict among the courts of appeals • Civil rights or civil liberties question • Ideological or policy preferences of the justices • Or, Significant social or political interest – the Court receives a number of interest group amicus curiae briefs Oyez! Oyez!

26. The textbook emphasizes these concepts as deference to legislative decisions, but restraint and activism also relate to stare decisis. We have already discussed the importance of stare decisisas it relates to the predictability of the judicial system. This is also important when it comes to the reputation of the Court. The Court remains effective as long as it is perceived to be acting in a non-political, nonpartisan manner. If the Court and the justices appear to be advancing the political interests of the party that put it in power, it loses legitimacy. Judicial restraint and judicial activism

27. “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.” Bush v. Gore (2000) • “The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.” Citizens United v. Federal Election Commission (2010) Justice stevens and the Legitimacy of the Court

28. Judicial restraint/activism is broadly misunderstood within our polarized society. Most see judges as restrained or activist based on whether they agree with them or not. In reality, the concept is based on whether they show deference to legislators when possible and when they respect stare decisis. The politics of the court

29. The Warren Court has often been accused by critics of the decision of being an example of judicial activism. The Warren Court was very specific and clear that they were not overturning Plessy v. Ferguson (1896). What they did establish was that public education had advanced to the point where it was a determinant of future successes and that the concept of “separate but equal” should not play a role in something so critical to an individual’s life chances. If Plessy v. Ferguson (1896) was never overturned, what would be the result of a repeal of the Civil Rights Act? Brown v BOE (1954)

30. This case overturned a Supreme Court decision that was only 7 years old and dessimated100 years of legislative actions regarding campaign contributions. This occurred when a moderate appointed by a Republican (O’Connor) was replaced by a conservative appointed by a Republican (Alito). In addition, the court went outside of the facts of the case presented to achieve the outcome they desired. Between Brown v. BOE and Citizen’s United, which would appear to be judicial activism as defined? Citizens United v. Federal Election Commission (2010)