I haven’t finished reading today’s Supreme Court ruling in Citizens United v. FEC (the opinions take up 183 pages), but from a quick skim it looks like there’s a feast of fascinating stuff in it for conlaw nerds, telling us a lot about both the state of constitutional analysis on the Court and the destinctive styles of various justices.
Stevens’s dissent attempts to make an original understanding argument that the founders didn’t like corporations, and while Scalia’s concurrence very effectively hammers away at Stevens’s analysis it seems significant that we’ve gotten to the point where a liberal justice is even attempting to argue in originalist terms. Scalia’s concurrence is joined by Alito and joined in part by Thomas, but is not joined by Roberts, who files his own concurrence, dealing with stare decisis and judicial restraint. That’s an interesting comment on what Roberts cares about; he’s a conservative minimalist who is reluctant to weigh in on originalist arguments. Alito joins both Scalia’s dissent and Roberts’s (he’s the only one who joined both), showing an interest in both originalism and precedent. (Scalia is known to care more about precedent than Thomas does, but I haven’t read enough of Roberts’s opinion to guess why Scalia didn’t join it.)
Thomas, always unafraid to stake out his own path, files a lone dissent on the part of the majority opinion which upholds McCain-Feingold’s disclosure requirements; Thomas argues that anonymous speech is constitutionally protected. On a conference call today with Citizens United’s President David Bossie and General Counsel and VP Michael Boos, I asked what they made of that; Boos said they agree with Thomas’s analysis, but they were more concerned with the burden that the disclosure requirements place on short ads — a ten second ad requires four seconds for disclosure. Boos said the court didn’t really address this problem today, but may in the future.
There’s lots more on the case at The Volokh Conspiracy (not surprisingly, given Eugene Volokh’s prominence as a First Amendment scholar). One of the lighter things noted over there: This is the first time the word “blog” has appeared in a Supreme Court opinion.
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