We thank a critical reader of our post on Jeffrey Toobin's New Yorker piece on Citizens United for pointing us to posts by Tom Goldstein at SCOTUSblog post and Ed Whelan at NRO on the same subject.
Goldstein, in fact, liked Toobin's piece but agrees with our reader that the facts Toobin recounts do not support his conclusions. Further, Goldstein says:
It does seem fair to me to criticize the Chief Justice for voting to decide Citizens United on constitutional grounds. But that is a criticism that is just as applicable to the entire majority, as opposed to an indication of maneuvering by him. It also ignores that the alternative may have been no clear holding whatsoever – with dueling members of the majority articulating inconsistent rationales that left the law in flux.
Whelan agrees:
I mean no disrespect to Chief Justice Roberts, whose intellect I deeply admire, to observe that there was nothing remotely “ingenious” or “brilliant” about either of these decisions [to arrange for rehearing and to assign the majority opinion to Kennedy]. Indeed, the facts that Toobin lays out make these decisions rather obvious. And these same facts would better support the thesis that the ultimate result in Citizens United reflected the failure of Roberts’s effort to unite the Court around a much narrower ruling—and that it was instead Justice Kennedy who, “more than anyone, shaped what the Court did.” (I’m not embracing this alternative thesis; I’m simply pointing out that Toobin’s evidence better supports it.)
