Monday round-up

Court-watchers are still analyzing and tracking reactions to last week’s decision in Citizens United v. FEC.

Commentators paid particular attention to both Justice Kennedy’s majority opinion and to the concurring opinion of Chief Justice John Roberts.  The Washington Post reports that Justice Kennedy “was [the] key to conservatives’ win”; moreover, his preference shaped the conclusion not only in this case, but also in the outcome in other recent cases in which the Court has shifted its jurisprudence. Susan Brooks Thistlethwaite, writing online for the Washington Post, recalls the concerns she expressed at the confirmation hearings of Chief Justice Roberts.  Her view in 2005 “that Roberts plans to pursue an activist, conservative agenda” remains the same today.

Rick Hasen of Election Law Blog scrutinizes the Chief Justice’s choice to write a concurrence.  Hasen proposes that it could have been either to defend himself from charges of judicial activism, to distance himself from an opinion which overturned a major precedent, or both.  The LA Times chronicles the relationship between Justice Kennedy and the Chief Justice, reporting that “to pursue a conservative shift, Roberts must win Kennedy’s vote,” while Adam Liptak of the New York Times analyzes the exchanges between the majority and dissenting opinions.  The Religion Dispatches, the WSJ Law Blog and the New Yorker also report.

Parties with a stake in the case also commented.  The Washington Post appraises Senator John McCain’s pejorative reaction.  A co-author of the Bipartisan Campaign Finance Reform Act, McCain doubts that anything can be done to counter the Court’s decision.  President Barack Obama decried the decision, saying “[t]his ruling opens the floodgates for an unlimited amount of special interest money into our democracy,” reports the Christian Science Monitor.  Brian Stelter of the New York Times reports that local television stations, many of whom anticipate a spike in advertising because of the decision, also followed the case closely.  And  SCOTUSblog’s Lyle Denniston and Harvard Law School Professor Laurence H. Tribe weighed the potential legislative and Congressional responses to the decision.

The NRA, CATO, and the ACLU all supported Citizens United as amicus curiae in the case, but the organizations have had differing reactions to the decision.  While the NRA “praised” the Court for removing unconstitutional restrictions on free speech, and Roger Pilon of Cato supports the decision, the ACLU may respond by re-considering its stance on campaign restrictions, the New York Sun reports.  The decision is becoming a test of principle at the ACLU or, as one internal memo describes it, a “Skokie moment” – referring to the 1978 case in which the ACLU defended an American Nazi group’s efforts to march through the Chicago suburb.

Many analysts weighed in on the rights of corporations as interpreted by the Court.  At The American Prospect, Heather Gerken posits that this opinion was the result of a string of recently decided, little-noticed cases.  David Von Drehle of Time concludes that, as a result of the Court’s decision, “more Americans [will] have more access to more streams of political communication than ever before.”   Writing for Conglomerate Blog, Usha Rodrigues quotes from the Court’s opinion while exploring the history and legal status of corporations.  David Kairys, writing for Slate, claims that the argument for allowing corporations to enjoy the same rights as ordinary citizens is a “controversial innovation of the conservative justices over the last few decades.”  Politico takes a different angle, reporting that the impact of the decision may not be “as dramatic” as some have speculated.

The New York Times has a profile of James Bopp Jr., who has long represented Citizens United, and whom Richard Hasen describes as “a litigation machine.”  Hasen observes that Bopp “has manufactured these cases to present certain questions to the Supreme Court in a certain order and achieve a certain result.”  Offering a historical view of the advocates in the case at Law.com, Tony Mauro reports that Citizens United may have shifted from the question of the legality of “Hillary: The Movie,” to the constitutionality of major precedents and statutes when Citizens United replaced Bopp with Ted Olson.  Olson, for his part, suggests that the turning point in the case occurred when Deputy Solicitor General Malcom Stewart claimed that books sponsored by corporations could be banned.

Briefly:

• UPI reports on the Supreme Court’s right to privacy rulings as they relate to airport security screenings and full-body scanners.
• The Washington Post reports on Friday’s March For Life, an annual march marking the anniversary of the Roe v. Wade decision.
• Eugene Volokh offers counsel on search terms to use when researching old cases.  For example, to locate references to the right to trial by jury in civil cases, search for “Ninth Amendment” and “Seventh Amendment.”  To find out why, visit the Volokh Conspiracy here.
• The WSJ Law Blog reports on a recently formed all-white basketball league.  Anti-trust laws could apply to the league, just as they may soon apply to the NFL, depending on how American Needle v. NFL is decided, the Journal reports.