U.S. Supreme Court

How a Kennedy Concurrence Turned into a Majority Opinion in Citizens United


Citizens United v. FEC was initially a case about a video critical of Hillary Clinton and whether a campaign finance law regulating TV advertising barred its on-demand broadcast before elections. The issue was one of statutory interpretation.

“There did not seem to be a lot riding on the outcome,” the New Yorker reports. “After all, how many nonprofits wanted to run documentaries about presidential candidates, using relatively obscure technologies, just before elections?”

That changed when Justice Samuel A. Alito Jr. asked a question during oral arguments in March 2009, according to the New Yorker. The Wall Street Journal Law Blog has the highlights of the article.

Alito asked if the law on electioneering communications could stop a corporation from releasing a book rather than a movie. Representing the government, lawyer Malcolm Stewart answered with a qualified yes. The New Yorker reports on the reaction. “The justices leaned forward,” the story says. “It was one thing for the government to regulate television commercials. That had been done for years. But a book? Could the government regulate the content of a book?”

After the arguments, Chief Justice John G. Roberts Jr. drafted an opinion saying the law didn’t apply to the Hillary video or advertisements for it. Justice Anthony M. Kennedy wrote a far-reaching draft that concurred, but argued the court should go farther and declare the McCain-Feingold campaign finance law unconstitutional. Conservative justices started to endorse the concurrence, and Roberts withdrew his opinion to let Kennedy write for the majority.

Justice David H. Souter was assigned the dissent; he was writing at the same time he announced his retirement. According to the New Yorker, it was “an extraordinary, bridge-burning farewell to the court” that argued Roberts had violated court procedures to get the result he wanted. Roberts didn’t want to damage the court’s credibility, the article says, so he “came up with a strategically ingenious maneuver. He would agree to withdraw Kennedy’s draft majority opinion and put Citizens United down for reargument, in the fall. … The proposal put the liberals in a box. They could no longer complain about being sandbagged, because the new Questions Presented would be unmistakably clear.”

When the court issued its decision, Justice John Paul Stevens dissented in a 90-page opinion. Kennedy wrote for the five-justice majority, striking down restrictions that had barred corporations from spending money from their general treasuries on campaign ads in the days before an election. The decision found that corporations have a First Amendment right to expressly support political candidates.

The New Yorker article deems Roberts’ assignment of the opinion to Kennedy “a brilliant strategic move.”

“Roberts, during his confirmation hearing, made much of his judicial modesty and his respect for precedent,” the story says. “If the Chief had written Citizens United, he would have been criticized for hypocrisy. But by giving the opinion to Kennedy he obtained a far-reaching result without leaving his own fingerprints.”

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