Before retiring from the Supreme Court in 2009, liberal Justice David Souter penned a dissent so critical of the court's conservative justices, Chief Justice John Roberts went to great lengths to prevent it from being published. That's one of the clams from The New Yorker's epic dissection of the 2010 Supreme Court Decision Citizens United vs. the Federal Election Commission. Taking us inside the legal wranglings of the high-profile case, staff writer Jeffrey Toobin describes a dissent Souter wrote at the end of his tenure at the Supreme Court. The argument, which remains unpublished, accused Roberts of engineering the outcome of the Citizens United case:
Souter wrote a dissent that aired some of the Court’s dirty laundry. By definition, dissents challenge the legal conclusions of the majority, but Souter accused the Chief Justice of violating the Court’s own procedures to engineer the result he wanted.
Roberts didn’t mind spirited disagreement on the merits of any case, but Souter’s attack—an extraordinary, bridge-burning farewell to the Court—could damage the Court’s credibility. So the Chief came up with a strategically ingenious maneuver.
Toobin goes on to explain that Roberts put Citizens United down for the process known as "reargument" on June 29, 2009, the last day of that year's term, and the day that Souter retired. The maneuver set the trajectory of the case and ultimately prevented Souter's dissent from being published. As U.C.–Irvine School of Law professor Rick Hasen notes on his blog, "thanks to the reargument ... the criticism that the Court decided the issue without briefing was gone."
If you're interested in seeing Souter's full dissent, so are we. Unfortunately, that's not going to happen anytime soon. As has been reported, Souter gave all "his papers to the New Hampshire Historical Society in Concord, where they will remain closed for 50 years."
The details of Souter's harsh dissent is only the latest sign that the high court's liberal justices see the Citizens United decision as a major embarrassment for the court. As UPI reported in February, "Justices Ruth Bader Ginsburg and Stephen Breyer suggested events since the court ruled in 2010 that corporations can make unlimited contributions to political action committees not directly controlled by candidates have cast doubt on the wisdom of the decision." That opinion came in light of a review of Montana's election laws, which had similarities to McCain-Feingold. "Montana's experience, and experience elsewhere since this court's decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations 'do not give rise to corruption or the appearance of corruption,'" Ginsburg wrote. Both she and Breyer advised that the court revisit the Citizens United issue. That's an outcome not likely as long as liberal justices remain in the minority.