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Chapter 1

Balls and Strikes

Chief Justice John Roberts

McCutcheon v. Federal Election Commission

John Roberts, nominee for chief justice of the United States, appeared before the Senate Judiciary Committee from September 12 to 15, 2005. Roberts promised the senators, “I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.”

In his statement, he referred by name to two and only two figures from American history. The first was his predecessor, William H. Rehnquist, for whom he had served as law clerk during OT1980. Rehnquist had died a week earlier after battling cancer. “His dedication to duty over the past year was an inspiration to me and I know to many others,” Roberts said. “I will miss him.” The second was Ronald Reagan, who had brought Roberts to Washington a quarter-century earlier to serve as a junior attorney in the White House Counsel’s office: “President Ronald Reagan used to speak of the Soviet Constitution,” he said. “And he noted that it purported to grant wonderful rights of all sorts to people, but those rights were empty promises because that system did not have an independent judiciary to uphold the rule of law and enforce those rights.”

Read closely, the references to Rehnquist and Reagan cut against the promise of humility. Neither the former chief justice nor the former president was especially modest in his aspirations for the federal judiciary.

Reagan’s legal priorities, as set by his chief legal adviser, Edwin Meese, had included reversal of Roe v. Wade; a cutback on federal civil rights statutes (Reagan had opposed the establishment of a federal Martin Luther King holiday and unsuccessfully vetoed the Civil Rights Restoration Act of 1988) and in particular on the Voting Rights Act of 1965 (which he once called “humiliating to the South”); an end to affirmative action; and greater judicial tolerance for religion in government and public life. Reagan used the power of the presidency to crush a public-employee union, the Professional Air Traffic Controllers’ Association, in 1981. Roberts, as a young Justice Department and later White House lawyer, was an enthusiastic part of the Reagan legal effort, writing memos critical of the Voting Rights Act and the Civil Rights Restoration Act, skeptically viewing the protection of women under the equal protection clause, questioning constitutional protections for children of undocumented aliens, and championing an end to race-conscious affirmative action in federal hiring and contracts.

Reagan did get a chance to alter the court; he appointed three justices—Sandra Day O’Connor, Antonin Scalia, and Anthony Kennedy. He elevated Rehnquist, a Nixon appointee, to the chief’s seat. Even before the ascension of Reagan, Rehnquist had campaigned actively against the prevailing doctrine of the Warren and Burger courts. As an associate justice, he was known as “the Lone Ranger” for his willingness to take solo positions that seemed far to the right of prevailing law. As chief justice, Rehnquist was not the Lone Ranger any more. But nobody ever called him an umpire.

In a 2006 interview, Roberts elaborated what he had learned from Rehnquist. “I think there’s no doubt that [Rehnquist] changed, as associate justice and chief,” Roberts said. “He became naturally more concerned about the function of the institution.” As Lone Ranger, Rehnquist repeatedly criticized the police-warning requirements imposed by the Warren court case of Miranda v. Arizona (“You have the right to remain silent,” etc.). But when, in 2000, the court had a chance to overturn the decision, Chief Justice Rehnquist not only voted to reaffirm it but wrote the opinion that did so. “He appreciated that it had become part of the law—that it would do more harm to uproot it,” Roberts said, “and he wrote that opinion as chief for the good of the institution.”

Roberts said his approach differed from Rehnquist’s in one way, however: Rehnquist wanted to change the law and cared little about the margin. “I don’t remember [promoting unanimity] as a feature that Rehnquist stressed much.” Roberts said that he, by contrast, thought unanimity was good for the nation and the court. He hoped to foster “a culture and an ethos that says ‘It’s good when we’re all together.’”

OT13 began with oral argument on a divisive, highly political case about campaign finance and concluded with two 5–4 decisions of divisive, highly political cases—one about public-employee unions and the other about contraceptive coverage under the ACA. In all three cases, the result furthered a high-profile objective of the Republican Party. In all three cases, the voting precisely followed the partisan makeup of the court, with the five Republican appointees voting one way and the four Democratic appointees bitterly dissenting. In all three cases, the chief voted with the hard-right position.

In between came a number of cases resolved by a vote of 9–0, thus no doubt gladdening the chief’s heart. But underneath many of them was bitter disagreement about the reasoning of the unanimous result. The picture was so equivocal that the irrepressible Dahlia Lithwick, jurisprudence reporter for Slate, christened the new mood “fauxnanimity.”

On the bench, Roberts is a somewhat contradictory figure. He is a far more genial presiding officer than Rehnquist, who (though unassuming in private) was a stern, even Saturnine presence on the bench. Largely stone-faced, Rehnquist allowed litigants no leeway when their time was completed. Roberts, by contrast, will frequently offer extra time for lawyers to complete their thoughts if the court has interrupted them often during oral argument.

Roberts is also sensitive of decorum in his court. When then Solicitor General Elena Kagan appeared in front of the court to argue Robertson v. US ex rel Watson, Justice Scalia asked her whether a federal prosecutor was an agent of the executive or judicial branch. “Who would you like the person be an agent of, Justice Scalia?” the cheeky Kagan responded. Roberts intervened—“Usually we have questions the other way”—prompting Kagan to apologize. In 2012, during the last of the interminable three-day, six-hour argument on the constitutionality of the ACA, Scalia began to riff on an old Jack Benny routine in which a robber says to Benny, “Your money or your life.” The notoriously stingy comedian cannot decide. “You can’t refuse your money or your life,” Scalia said. “But your life or your wife’s, I could refuse that one.”

“No,” the chief said, unsmiling. “Let’s leave the wife out of it.” When Scalia continued clowning, Roberts rebuked him sharply: “That’s enough frivolity for a while.”

As a writer, however, Roberts is both self-assured and good-natured. He delights in the written word; his prose is crystalline, vivid, and often humorous. In a 2008 opinion, he dissented from the court’s denial of certiorari in a case about an arrest. He introduced the facts in the voice of a noir novelist: “North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak.” In an OT09 case, AT&T argued that, as a corporation, it was a “legal person” and could thus refuse to disclose documents under a statutory provision protecting “personal property.” Roberts wrote,

In ordinary usage, a noun and its adjective form may have meanings as disparate as any two unrelated words. . . . [Thus] the noun “crab” refers variously to a crustacean and a type of apple, while the related adjective “crabbed” can refer to handwriting that is “difficult to read”; “corny” can mean “using familiar and stereotyped formulas believed to appeal to the unsophisticated,” which has little to do with “corn” (“the seeds of any of the cereal grasses used for food”); and while “crank” is “a part of an axis bent at right angles,” “cranky” can mean “given to fretful fussiness.”

The statute’s “personal privacy” protection, he concluded, “does not extend to corporations. We trust that AT&T will not take it personally.”

During OT13, Roberts authored four high-profile opinions in cases that concerned the federal government’s power to make and enforce treaties, the states’ power to protect abortion facilities from disruptive protest, the right of the police to search the contents of a cellphone when they have arrested its owner, and the federal government’s power to limit contributions to federal election campaigns.

The campaign-finance opinion, called McCutcheon v. Federal Election Commission, was his signature work for OT13. The case followed the court’s 2010 decision, Citizens United, in concluding that the First Amendment was an all but impassable obstacle to efforts to limit the role of concentrated wealth in politics.

Citizens United had dealt with the issue of “independent expenditures” by for-profit corporations during federal elections. The Bipartisan Campaign Reform Act (“McCain-Feingold”) prohibited corporations from spending money to influence elections—in that case, by buying television time to advertise a film critical of then Senator Hillary Rodham Clinton—within thirty days of the vote. The court concluded that Congress could put no limits on these “independent expenditures” by corporations, because they could not possibly create “corruption or the appearance of corruption.” Everyone understood that they were independent. “Independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” Justice Kennedy wrote for the majority. “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy.”

But Citizens United was simply one major battle in the conservative legal movement’s long war against any limitations on money in politics. The court had specifically refused to discuss a different issue: whether direct contributions—where an individual or corporation puts a check into the outstretched hand of a political candidate—can be limited because of the interest in preventing corruption. Thus the stage was set for McCutcheon.

The specific issue in McCutcheon was whether Congress could enact “aggregate contribution limits” on political donors. Since the reforms of the 1970s, individuals may contribute to campaigns and party committees but only in limited amounts. (Direct contributions by corporations are forbidden, for now.) McCain-Feingold limited individual donors in how much they can give to individual candidates or party committees. These limits, called “base limits,” were not at issue in McCutcheon. But the act also limited the “aggregate amount” any one donor could give to all federal candidates and committees in a given election cycle—a total of $48,600 to individual candidates and $74,600 to committees.

Shaun McCutcheon, an Alabama businessman, wanted to give more than that—he was maxed out on his aggregate limit but wanted to give contributions patriotically denominated $1,776 each to a total of a dozen more candidates during the 2014 cycle. He brought suit, alleging that the aggregate limits burdened his First Amendment rights.

Four justices of the court (Roberts plus Antonin Scalia, Anthony Kennedy, and Samuel Alito) agreed that the aggregate limits violated McCutcheon’s rights; Clarence Thomas provided the fifth vote for McCutcheon but wrote separately to suggest that both base and aggregate limits are unconstitutional.

John Roberts wrote the opinion. It combines the best and worst of his judicial style. The prose is self-assured and clear. The legal conclusions are more debatable; the disregard for precedent is not. Roberts first brushed aside the court’s first major campaign finance-reform case, Buckley v. Valeo (1976). That case held that “aggregate limits” were justified by the possibility that wily donors would use multiple contributions to “circumvent” the limits on direct contributions. That part of the Buckley opinion, he wrote, was only “a total of three sentences”—hardly worth noticing, really. He didn’t overrule it; he made it disappear.

Without the Buckley precedent, Roberts then weighed the government interests at stake in the aggregate limits and found them, in essence, nonexistent. Congress, Roberts repeated, cannot seek to “‘level the playing field,’ or to ‘level electoral opportunities,’ or to ‘equaliz[e] the financial resources of candidates.’” Thus, he said, its only legitimate reason for regulating campaign finance is “preventing corruption or the appearance of corruption.”

Roberts, however, defined “corruption” only as what lawyers call “quid pro quo” (“this for that”) corruption. That requires a bargain like, “I will give you $200,000 to vote for my subsidy.” Roberts did not deny that the objects of McCutcheon’s bounty were likely to feel grateful to him and to desire to please him while in office. This took the analysis back to Citizens United. In that case, the Court had noted that candidates who benefited from corporate “independent expenditures” might feel grateful to the corporations that made them. Once in office, they might even give those corporations special access. So what? “Ingratiation and access . . . are not corruption,” Kennedy had written for the majority. Now Roberts applied the same logic to direct contributions. True, a candidate would feel grateful to McCutcheon and might be eager to please him, might give him special access, might consult him in preference to others who had not contributed. What’s your point? asked Roberts in his opinion. That’s not corruption; it’s democracy at work.

“There is no right more basic in our democracy than the right to participate in electing our political leaders,” Roberts began. “Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.”

McCutcheon, then, was seeking only his due as a citizen—the right to take part in politics. Aggregate limits discriminated against him by limiting the number of candidates he could support. Here is the heart of the opinion and perhaps of John Roberts’s view of democracy:

The individual may give up to $5,200 each to nine candidates, but the aggregate limits constitute an outright ban on further contributions to any other candidate. . . . At that point, the limits deny the individual all ability to exercise his expressive and associational rights by contributing to someone who will advocate for his policy preferences. A donor must limit the number of candidates he supports, and may have to choose which of several policy concerns he will advance. . . . It is no answer to say that the individual can simply contribute less money to more people. To require one person to contribute at lower levels than others because he wants to support more candidates or causes is to impose a special burden on broader participation in the democratic process.

As a matter of logic, this conclusion is demonstrably false. The limits do not require a donor “to contribute at lower levels than others”; they mean that, no matter how rich a donor may be, he or she can give no more than any other citizen. But Roberts meant something different: the donor limits meant that McCutcheon would be at a disadvantage among the other wealthy donors to a specific candidate. Some would be able to give the full amount, while McCutcheon would give less because he wanted to support more candidates.

This reasoning reflects a world in which giving money is the equivalent of voting and discrimination among those with money to give is the equivalent of—indeed, perhaps worse than—discriminating among voters. Consider the plight of Sean McCutcheon once he had given the maximum amount. He could volunteer for a candidate, Roberts wrote, but “personal volunteering is not a realistic alternative for those who wish to support a wide variety of candidates or causes.” Beyond that, “other effective methods of supporting preferred candidates or causes without contributing money are reserved for a select few, such as entertainers capable of raising hundreds of thousands of dollars in a single evening.”

The McCutcheons of the world, of course, are already members of a “select few.” But that, to Roberts, was not enough. It was intolerable that anyone should have more influence than a wealthy donor: if Bruce Springsteen or Stevie Wonder could show support for a candidate by singing, then that discriminated against, subordinated, directly harmed rich people who could not. Having to give less than other donors to a specific politician was a very real harm to a wealthy person because the entire purpose of giving money was to gain friendship, access, and favoritism from the politician. And that, to Roberts, was as it should be; that was democracy at its best: “Government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. ‘Ingratiation and access . . . are not corruption’ [quoting Citizens United]. They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.”

Sean McCutcheon is simply a constituent, like the widow seeking help with her Social Security check. Of course, the widow has only her vote to offer as thanks. But Sean McCutcheon is rich; government cannot deny him the right to as much gratitude from as many politicians as he can buy.

In Roberts’s view, the court was simply fulfilling its age-old role of protecting the lonely, endangered dissenter from an intolerant majority. “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects,” he wrote. “If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.”

The Roberts view of democracy is the direct opposite of Justice Stephen Breyer’s vision of “active liberty,” in which the goal of the Constitution is to enable all citizens to participate in government. Breyer read a summary of his dissent from the bench on the day McCutcheon was decided: “Today’s decision substitutes judges’ understandings of how the political process works for the understanding of Congress, fails to recognize the difference between influence resting upon public opinion and influence bought by money alone, overturns key precedent, creates serious loopholes in the law, and undermines, perhaps devastates, what remains of campaign finance reform.”

In his written dissent, Breyer laid out his view of the role of ordinary citizens in a democracy: “Campaign finance laws recognize that the First Amendment, which seeks to maintain a marketplace of political ideas and a ‘chain of communication between the people,’ and their representatives, cannot serve its purpose unless the public opinion it protects is able to influence government opinion. Campaign finance laws recognize that large money contributions can break that chain. When money calls the tune, those ideas, representing the voices of the people, will not be heard.”

Roberts had dismissed the suggestion that committees could transfer funds to candidates, thereby getting around the “base limits” on contributions to individual campaigns. The chief justice suggested that the largely toothless Federal Election Commission could police these illicit transfers. Breyer responded dryly: “We react to [that claim] rather like Oscar Wilde reacted to Dickens’s depiction of the death of Little Nell. ‘One would have to have a heart of stone,’ said Wilde, ‘to read it without laughing.’”

Democrats found little to laugh about in McCutcheon, but Republicans and wealthy donors were exultant. The first major case of the term had been a total victory for the conservative agenda.