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Jeffrey Toobin Rewrites Supreme Court History—And His Own

9:05 AM, May 17, 2012 • By ADAM J. WHITE
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Olson did not argue that the Supreme Court could decide the case on strictly statutory grounds, avoiding the First Amendment question.  Rather, Olson argued that the First Amendment prohibits Congress from regulating Citizens United's political speech, and that one way to protect Citizens United's First Amendment right would be to re-interpret the statute to exempt Citizens United.  Toobin knows this, because Olson's explanation came immediately after the lines that Toobin quotes:

JUSTICE SCALIA:  So you're making a statutory argument now?

MR. OLSON:  I'm making a—

JUSTICE SCALIA:  You're saying that this isn't covered by it.

MR. OLSON:  Yes, I am making a statutory argument in the sense that you will construe the statute in the ways that doesn't violate the Constitution.  The Constitution, as—as the Court said in Wisconsin Right  to Life [v. FEC], gives ties to the speaker, errs on the side of  permitting the speech, not prohibiting the speech. And so all those things may be statutory arguments, Justice Scalia, but they are also constitutional arguments.

It is impossible to reconcile Olson's closing point with Toobin's description of Olson's argument: namely, that "Olson’s argument indicated that there was no need for the Court to declare any part of the law unconstitutional, or even to address the First Amendment implications of the case." Confronted with a choice between quoting Olson's full remarks, and advancing his own anti-Roberts narrative, Toobin chose the latter.

Having laid down this fictional foundation, Toobin goes on tell a story in which Chief Justice Roberts manipulated the post-argument opinion writing process to ensure that the Court would reach the case's First Amendment issues, and to tie that story to a longer history of the Court's Gilded Age favoritism toward corporate political power.

Color me skeptical. On the face of his article, Toobin demonstrates his persistent inability to fully and accurately describe the arguments that counsel and the justices made. And this is not limited to his aforementioned mischaracterization of the case. On the question of foreign involvement in U.S. politics, Toobin quotes Olson's argument that the "Court in the past has made no distinction based upon the nature of the entity that might own a share of a corporation." But Toobin neglects to quote Olson's subsequent concession, in the same argument, that "there is some compelling governmental interest because of foreign investment in corporations."

Not that all of Toobin's errors are seemingly intentional. In retracing the Court's history of corporate rights, he places great weight on the Chief Justice Waite's comments in Santa Clara County v. Southern Pacific Railroad (1886), yet his single quote from Chief Justice Waite is inaccurate. This particular error is utterly benign, but it reminds us that the author is not one to sweat details.

Given Toobin's inability of accurately handling straightforward, easily confirmable facts, why should anyone take at face value Toobin's description of the Justices' private discussions, and their draft opinions—especially when Toobin only describes, never quotes, those deliberations or draft opinions?  

Of course, it probably is folly to get bogged down in the details Toobin's breathless behind the scenes account; even taking his reporting at face value, there is simply nothing there to indicate that the justices' deliberations took an inappropriate turn, as Ed Whelan already has explained.

Still, what jumps out at me is the fact that someone at the Court—a clerk, or a justice—leaked the behind the scenes story to Toobin. When will clerks or justices leak the Court's much more recent deliberations in the Obamacare cases? And when Toobin or others report those leaks, will those reports be as accurate as Toobin's Citizens United story?

Adam J. White is a lawyer in Washington, D.C.

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