Legal Commentary

Citizens United

By Jonathan H. Adler

The Supreme Court?s opinions in Citizens United v. Federal Election Commission, including the syllabus, are a whopping 183 pages. There are five opinions in all.  Justice Kennedy?s opinion for the Court, concurring opinions by Justice Scalia (joined by Alito and Thomas in part) and Chief Justice Roberts (joined by Alito), and opinions concurring in part and dissenting in part by Justice Thomas and Justice Stevens (joined by Justices Ginsburg, Breyer, and Sotomayor).  We?ve got a lot of reading to do.

UPDATE: Just a quick summary.  The Court held 5?4 that restrictions on independent corporate expenditures in political campaigns are unconstitutional, overruling Austin v. Michigan Chamber of Commerce and parts of McConnell v. FEC, and it upheld the disclosure requirements 8?1 (Thomas dissenting).  Justice Kennedy explained that the Court was overruling some of its prior decisions because it was not possible to rule in favor of the petitioners on narrower grounds without chilling protected political speech.  According to Justice Kennedy, the Court is re-embracing the principle that a speaker?s corporate identity is not a sufficient basis for suppressing political speech, as held in pre?Austin cases.  It would appear this holding applies equally to unions.  While disclosure requirements may also burden political speech, Justice Kennedy explained, such requirements may be justified by the government?s interest in ensuring that the electorate has information about spending on elections and campaigns, and the specific disclosure requirements at issue are constitutional as-applied to Citizens United.  The opinion also includes a substantial discussion of stare decisis, and why such considerations counseled overturning prior precedents.

FURTHER UPDATE: For some early commentary, see SCOTUSBlog, Rick Hasen?s Election Law Blog and NRO?s Bench Memos.

LAST UPDATE: Just for fun, here are the page counts:

• Syllabus ? 7 pages
• Justice Kennedy?s Opinion for the Court ? 57 pages
• Chief Justice Roberts? Concurring Opinion ? 14 pages
• Justice Scalia?s Concurring Opinion ? 9 pages
• Justice Stevens Opinion Councurring-in-part, Dissenting-in-part ? 90 pages
• Justice Thomas ? 6 pages

Full post as published by The Volokh Conspiracy on January 21, 2010 (boomark / email).