You will doubtless hear today that 89-year-old Justice John Paul Stevens read aloud from his partial dissent in Citizens United v. Federal Election Commission for almost 20 minutes in a slow, halting voice, periodically getting tangled up in thickets of words like “corporation” and “corruption.” Meanwhile, a loud banging noise from the bench all but drowned him out. That’s true. But Justice Anthony Kennedy fared no better reading from his majority opinion beforehand, tearing through the first part of his summary, then losing his place and stumbling through the holding. If Citizens United really represents the moment at which the Roberts court allows itself to finally give voice to its full-throated judicial activism, it’s not clear Anthony Kennedy managed much more than a vocal mumble. He looked like he’d have preferred to have been reading his dissent from a soapbox. Or maybe from a crouch underneath the bench. Stevens haltingly worked his way through all five of his objections to the majority’s holding today. Kennedy barely gulped out the holding itself.
In part, as Rick Hasen suggests that’s because Kennedy’s soaring sonnet for corporate free speech has very little to do with the case at hand. The court had to reach out far beyond any place it needed to go to strike down century-old restrictions on corporate spending in federal elections. This started off as a case about a single movie. It morphed into John Roberts’ Golden Globe night.
So Kennedy doesn’t really find his voice today until he gets to the fist-pounding bits: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens or associations of citizens, for simply engaging in political speech.” “The censorship we now confront is vast in its reach.” And: “When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
As Stevens says in reading his dissent, none of that has anything to do with the court’s decision to topple decades’ worth of legal architecture that had never been questioned in the courts. And Kennedy’s visceral terror of speech bans (the word “ban” appears 29 times in his 57-page opinion) and “censorship” seems to override any sort of temperate assessment of either the facts of the case before him, the lack of substantial record in the lower courts, the significance of the cases he is overruling, or the consequences of today’s opinion. Perhaps because this is the same Anthony Kennedy who was so exquisitely sensitive to the corrupting influence of money on public confidence in judicial elections in the Caperton case about judicial corruption, it’s hard to comprehend what it is about unlimited corporate contributions that so moves him.
If Kennedy is tentative this morning and Stevens is horrified, Justices Antonin Scalia and Clarence Thomas say nothing at all. They don’t have to: They’re the architects of the edifice Kennedy has erected. Reading from his dissent, Stevens describes their “sweeping” attacks on Michigan’s campaign finance law in Austin v. Michigan Chamber of Commerce (one of the cases overruled today) as “having planted the seed that flowered” into today’s majority opinion.
While Stevens is reading the portion of his concurrence about the “cautious view of corporate power” held by the framers, I see Justice Thomas chuckle softly. (Scalia takes on this argument in his concurrence.) Stevens hammers, more than once this morning from the bench on the principle that corporations “are not human beings” and “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.” He insists that “they are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”
But you can plainly see the weariness in Stevens eyes and hear it in his voice today as he is forced to contend with a legal fiction that has come to life today, a sort of constitutional Frankenstein moment when corporate speech becomes even more compelling than the “voices of the real people” who will be drowned out. Even former Chief Justice William H. Rehnquist once warned that treating corporate spending as the First Amendment equivalent of individual free speech is “to confuse metaphor with reality.” Today that metaphor won a very real victory at the Supreme Court. And as a consequence some very real corporations are feeling very, very good.