Sotomayor & Citizens United: so many possibilities … same result

Friday, September 4, 2009

Sometimes the obvious is simply that. There's no way around it.

“It” in this case is the outcome in Citizens United v. Federal Election Commission, the “Hillary movie” campaign-ad case to be re-argued by the Supreme Court on Sept. 9.

Though it's uncertain how exactly a majority of the Court will arrive at a conclusion, there can be little or no question as to the outcome. If the oral arguments in March reveal anything, there are five easy votes to sustain the free-expression claims of the group that produced “Hillary: The Movie,” Citizens United. And nothing that Justice Sonia Sotomayor, the new addition to the Court, does is likely to change that, barring a miracle.

The lineup to sustain Citizens United’s free-speech argument: Chief Justice John Roberts, and Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas. True, Justice Thomas, consistent with his usual practice, asked no questions when the case was initially argued. But his voting record in campaign-finance cases strongly suggests he will uphold the free-expression claim and again join his conservative colleagues as he did in campaign cases such as Davis v. Federal Election Commission (2008), Federal Election Commission v. Wisconsin Right to Life (2007), Vermont Republican State Committee v. Sorrell (2006) and Federal Election Commission v. Beaumont (2003).

So if the obvious is just that, then what difference, if any, can Justice Sotomayor’s presence on the Court make — even if she approaches such issues differently from her predecessor, Justice David Souter?

In a sense, it doesn’t matter because there are already five votes to uphold the First Amendment claim and that calculation does not include Souter’s vote. Moreover, as evidenced by his questions in the oral arguments in Citizens United and his voting record in campaign-finance cases, Souter would be inclined to deny any First Amendment claim in this case.

That said, some observations could still be made on how Justice Sotomayor might approach such issues.

Reading tea leaves
Sotomayor's judicial record doesn't give us much to go on. There are a few tea leaves in the form of a 2005 case from Vermont while she served on the 2nd U.S. Circuit Court of Appeals and in her service on a New York City campaign-regulation board some years ago, on which she backed tough restrictions.

In the Vermont case, Landell v. Sorrell, she voted to deny a hearing by the full 2nd Circuit. That 7-5 vote let stand a decision upholding restrictions in a Vermont campaign-finance law, notwithstanding a First Amendment challenge to it. In the Landell matter, then-Judge Sotomayor signed onto a concurring opinion filed by Circuit Judges Robert Sack and Robert Katzmann.

The Sack-Katzmann concurrence concerned the merits of full-court review rather than First Amendment law. As the two judges wrote: “Whether the question here is ‘of exceptional importance’ is, for us, a close call. The issue of campaign finance and its relationship to First Amendment protection for political expression is obviously important, at least as a general matter. It is less clear to us, though, that the decision in the case that we are being asked to review is, at this stage, itself ‘exceptionally’ important.” Nonetheless, the concurrence left open the possibility that the judges might “reconsider” the matter in light of changed circumstances.

Given the cautious posture of the Landell concurrence, it is hard to discern what it could mean in how Sotomayor might analyze or vote in Citizens United. When asked about the matter directly in a written question from Sen. Jeff Sessions, R-Ala., Sotomayor responded obliquely, stressing how her vote reflected “a number of factors.” She added: “Whether and how these considerations might apply in another case raising a different constitutional issue would depend on the facts and procedural posture of the case.”

As Stephen Sondheim wrote, “A blank page or canvas / So many possibilities.”

As to guessing how Justice Sotomayor might vote in Citizens United or how she might analyze the issues, we can speculate generally on a range of possibilities.

  • Possibility 1: Her approach to the case and her vote prove similar to what Souter's would have been, in which case the vote would be 5-4 in favor of Citizens United. (Likely result.)

  • Possibility 2: Her vote and approach prove dissimilar to Souter's, in which case the vote will likely be 6-3 in favor of the Citizens United. (Unlikely result.)

  • Possibility 3: The force of her arguments persuades one of the five conservatives to change his vote, thereby denying the free-speech claim by a 5-4 vote. (Next-to-impossible result.)

  • Possibility 4: She splits her vote, writing a separate opinion siding with the conservatives on some issues but joining with the liberals on others. (Unlikely result.)

  • Possibility 5: She announces an entirely new approach to framing free-expression issues in campaign-finance cases, and thereafter votes with the conservatives or with the liberals, depending on the nature of her arguments. (Unlikely result.)

    In all of these scenarios, the one constant (save for #3) is the outcome in the case. But even in #3, if Sotomayor's arguments and logic were as compelling as those of, say, Justice Oliver Wendell Holmes in Abrams v. United States (1919), that would not change the outcome in Citizens United any more than it did in Abrams. Which nonetheless points to another possibility:

  • Possibility 6: Sotomayor issues a powerful concurrence or dissent with enough logical and rhetorical staying power to influence outcomes and thinking in future cases, much as Holmes’ Abrams dissent did. (Unlikely result.)

    Other factors
    Given what we know about Sotomayor and her approaches to law generally and the First Amendment in particular (see Sonia Sotomayor & the First Amendment), a few more thoughts spring to mind.

  • Possibility 7: She asks a number of rigorous questions during oral argument that might prove informative but don't change the outcome. (Likely result.)

  • Possibility 8: She pays considerable attention to the findings and record of the lower court, a federal three-judge panel for the District of Columbia, and largely defers to it, thus voting against Citizens United’s claim. (Likely result.)

  • Possibility 9: She takes a centrist position and thereafter sides with either a slim majority of the justices or with three justices in dissent. (Likely result.)

  • Possibility 10: However she votes on the outcomes, she nevertheless would not vote to overturn two earlier campaign-finance cases, Austin v. Michigan Chamber of Commerce (1990) and the part of McConnell v. FEC that addresses whether Section 203 of the Bipartisan Campaign Reform Act of 2002 is unconstitutional on its face. (In Austin, the Court denied a First Amendment claim against a Michigan law restricting corporate campaign spending. When Citizens United was set for re-argument, the parties were asked to file briefs about the issues in these cases.) (Likely result.)

    To return to the obvious, the outcome in Citizens United v. Federal Election Commission will not be affected by Justice Souter’s absence or by Justice Sotomayor’s presence.

    That asserted, there are a range of possibilities, some far more likely than others.  Whatever those possibilities, it is unlikely that Sotomayor, or any new justice for that matter, will act boldly. After all, it took the not-too-shy Hugo Black four years before he even began to express a daring First Amendment view in an opinion. That is the norm; such matters take time.

    Beyond her vote in Citizens United, we will probably have to wait to see just how Justice Sonia Sotomayor decides to paint her First Amendment canvas.

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