As legal commentators continue to debate last Thursday’s decision in Citizens United v. Federal Election Commission, I want to add a few observations related to Justices Scalia and Stevens. As Stevens read his poignant — sometimes halting — dissenting statement from the bench, he noted that the “seed that flowered” in the majority opinion had been planted by dissenters in the 1990 Austin v. Michigan Chamber of Commerce. In his written opinion Thursday, Stevens took specific aim at Scalia– an architect of the view that prevailed last week.
The majority decision was penned by Justice Kennedy, of course, yet Citizens United is another example of the success Scalia has enjoyed in recent years on the new Roberts Court. At one point, Justice Stevens wrote, “All of the majority’s theoretical arguments turn on a proposition with undeniable surface appeal but little grounding in evidence or experience, ‘that there is no such thing as too much speech.’” That quote is from Scalia’s dissenting opinion in Austin. Stevens went on to say, “In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process.” Stevens then said in a footnote of the notion of “no such thing as too much speech”: “Of course, no presiding person in a courtroom, legislature, classroom, polling place, or family dinner would take this hyperbole literally.”
I’m not sure Scalia wouldn’t.
I was also reminded as the Court majority gave short shrift to Congress of something Justice Scalia had said during oral arguments in the case last September and of his overall view of the legislative branch. “Congress has a self-interest,” he told U.S. Solicitor General Elena Kagan. “We are suspicious of congressional action in the First Amendment area precisely because we – at least I – I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don’t think so.”
Well, maybe. Scalia cut his teeth in Washington in the Nixon and Ford administrations and, in the post-Watergate era, developed an antagonism toward Congress. He was constantly going up to the Hill to testify on behalf of executive privilege and against disclosure of White House documents. He sparred repeatedly with Sen. Edmund Muskie of Maine, U.S. Rep. Otis Pike of New York, and U.S. Rep. Father Robert Drinan of Massachusetts – all Democrats trying to pry information from the executive. I found in my research for American Original that Scalia’s experiences in the 1970s led him to enduringly value executive power and to consider Congress an adversary.
Finally, I’ve been asked for my take on some of the difficulty Justice Stevens’s had when he spoke from the bench last week. As he read excerpts of his dissent, going on for twenty minutes, he stumbled on some words. Tony Mauro wrote in the Legal Times blog that it was “painful” to hear Stevens speak, and Jan Crawford of CBS said she thought she was witnessing a “different” person. For my part, I thought Stevens’s mix of passion and weariness revealed his sense of the changed Court. As he began his remarks he observed that when he and Justice Sandra Day O’Connor jointly wrote a campaign-finance decision in 2003 (McConnell v. Federal Election Commission, rejecting a broad challenge to the McCain-Feingold law and the provision in dispute last week), they had begun with the belief that Congress could restrict corporate spending in elections. As Stevens spoke despairingly, he condemned the reversal of that notion. “The only relevant thing that has changed since Austin and McConnell is the composition of this Court,” he said in his opinion.
I know from my interviews with Justice Stevens that he considered retiring in the late 1980s, after he hit age 65. He stayed on the bench partly because of the role he thought he could play as the Court moved to the right with appointees of Ronald Reagan and the first President Bush. Stevens will be 90 in April. This time around, his options for the long-term are different.