Roberts’ Convenient Loss of Memory

Roberts’ Convenient Loss of Memory February 2, 2013

Still reading Jeffrey Toobin’s new book, The Oath: The Obama White House and The Supreme Court, and found this very interesting quote from Chief Justice John Roberts in the chapter about the ruling in Citizens United v FEC. Legal experts have long regarded Roberts as an advocate of judicial restraint. That’s why his ruling in the health care reform case was not all that surprising given his past statements. But it makes it very difficult to explain his actions in Citizens United.

Not long after his confirmation to the Supreme Court, Roberts gave a talk at Georgetown University in which he laid out his vision for a less divided court. The key to that, he said, was for the court to make its ruling on “on the narrowest possible grounds.” And he said plainly:

“If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case.”

But in Citizens United, the court could have ruled on far narrower grounds. Not only was it not necessary for the court to overturn the bulk of the McCain-Feingold law and declare that corporations could spend unlimited amounts of money to influence the outcome of a campaign by flooding television with commercials, the petitioners in the case (Citizens United itself) didn’t ask them to do that. They only argued that the court should rule that the limitations on pre-election ad buys do not apply to non-profit organizations or to documentaries, but only to TV commercials.

There was no reason for them not to rule on those narrow grounds, one way or the other. The questions they presented for the case were solely addressed to that issue and the oral argument focused solely on that issue. But the five conservatives on the court were clamoring to go further, to overturn all limits on corporate spending. In order to do so, they had to overturn a century worth of both statutory and judicial precedent that went all the way back to Teddy Roosevelt. And they had to order that the case be reargued in the next term. They went to incredibly unusual lengths to go way beyond what the parties in the case asked them to do.

Judicial restraint? Not even close.

"Thanks for being so forthright."

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