Aditya Dhar - 2017 Near Scholar

2016-17

JOHN NEAR GRANT Recipient

Constitutional Conundrums and Measuring Minimalism: Analyzing the Incorporation of Restraint and Avoidance Canons in the Roberts Court’s Decision in Citizens United v. FEC

Aditya Dhar, Class of 2017

Constitutional Conundrums and Measuring Minimalism: Analyzing the Incorporation of Restraint and Avoidance Canons in the Roberts Court’s Decision in Citizens United v. FEC

Aditya Dhar

2017 John Near Scholar

Mentors: Ms. Katy Rees, Mrs. Meredith Cranston April 12, 2017

The war to win elections in the United States (U.S.) today mimics the panic of the Cold War. During the Cold War, the United States (U.S.) and Soviet Union both feared being on the losing end of the perceived missile gap between the two superpowers. Today, Democrats and Republicans fear lagging behind in election spending in an age where political grudge matches have become billion dollar races. With political parties gearing up for battle on the plains of voting booths, both sides refuse to disarm aspects of their weapons of mass spending: hard money and soft money. The advent of campaign finance deregulation stemming from the 2010 U.S. Supreme Court decision in Citizens United v. Federal Election Commission (FEC) has only hastened this massive deployment of money into politics.

Prior to Citizens United, both campaign contributions, in which money was directly donated to political campaigns, and independent expenditures, in which individuals and organizations could spend on advertising without coordinating with political campaigns, were extensively regulated at both the state and federal level. By 2010, the major law covering campaign finance was the 2002 Bipartisan Campaign Reform Act (BCRA), developed and sponsored by Senators John McCain (R-AZ) and Russ Feingold (D-WI). Originally developed in 1995 and proposed as legislation in 1998, the BCRA, along with the concern of campaign corruption, gained broader public exposure with Senator McCain’s presidential bid in 2000. During the campaign, Senator McCain placed an emphasis on reforming the campaign finance system to limit the perception of corruption and corruption itself.1 The BCRA placed limits on the ability of corporations, interest groups, and even national political parties, to contribute soft

1 Kurt Hohenstein, Coining Corruption: The Making of the American Campaign Finance System (DeKalb, Ill.: Northern Illinois University Press, 2007), 32.

money towards issue advertising.2 The strict federal regulatory environment in the early 2000s, driven by the debate over campaign finance originating in the late 1990s, was mirrored at the state-level, as the majority of states adopted increasingly stringent campaign finance laws.3

Regulation at the state and federal level resulted in numerous challenges to campaign finance laws, which were generally upheld by the judicial branch. Just as the BCRA formed the legislative foundation of campaign finance in the 21st century, the court cases, Austin v. Michigan Chamber of Commerce, McConnell v. FEC, and Wisconsin Right to Life (WRTL) v. FEC, formed the bedrock of campaign finance jurisprudence until Citizens United v. FEC. In the 1990 Austin case, the majority ruled on the premise of anti-distortion: the decision held that independent expenditures made by corporations could unfairly influence elections, and thus distorted the free speech of voters. 4 This anti-distortion rationale meant that campaign finance cases could be resolved in favor of the statute on the grounds of protecting free speech and the First Amendment.5 In 2003, the Court faced its first substantive challenge to the BCRA in McConnell v. FEC and held that corporate contributions created a perception of corruption which the government had a compelling interest in combatting, upholding the anti-distortion rationale and preserving the BCRA.6 Finally, the 2007 WRTL v. FEC largely upheld the McConnell and Austin decisions, but created a narrow exemption by arguing that issue advertisements were

2 David B. Magleby and Anthony Corrado, Financing the 2008 Election (Washington, DC: Brookings Institution Press, 2011), 103.

3 Joel A. Thompson and Gary F. Moncrief, Campaign Finance in State Legislative Elections (Washington, DC: Congressional Quarterly, 1998), 144-148.

4 Citizens United v. FEC, 205 U.S. (2010).

5 Robert E. Mutch, Campaign Finance: What Everyone Needs to Know (New York, NY: Oxford University Press, 2016), 47.

6 McConnell v. FEC, 1674 U.S. (2003).

excluded from the provisions of the BCRA.7 However, Citizens United marked a departure from these recent campaign finance decisions, striking down the BCRA and broadly overturning regulation.

Citizens United v. FEC centered around a challenge to the BCRA by the petitioner, conservative activist group Citizens United, which had sought to distribute a film critical of Hillary Clinton, Hillary: The Movie, during the 2008 Democratic presidential primary prior. The FEC had blocked Citizens United from distributing the movie, and Citizens United petitioned the District Court to reject the statute for two reasons: Citizens United argued that, first, the BCRA did not apply to Citizens United’s activity, and, second, that on face, the BCRA was unconstitutional as regulations on union and corporate contributions should be unconstitutional under the First Amendment. After the District Court sided with the FEC, Citizens United appealed to the Supreme Court with the same question at hand. While the Court, headed by Chief Justice John Roberts, originally considered a technical decision that would have determined the statutory application of the BCRA rather than the constitutionality of the legislation, siding with Citizens United’s first argument over its second, the Court instead released an opinion in January of 2010 which struck down swaths of the BCRA and marked a turning point in campaign finance.8 By reducing regulations on the abilities of unions and corporations to spend general treasury money to advertise for politicians, the Court shifted the nature of campaign finance landscape at the judicial level, which had been largely pro-regulation in the past. Moreover, Citizens United also handed corporations broader rights than before, creating central doctrines,

7 Citizens United v. FEC, 205 U.S. (2010).

8 Jeffrey Toobin, "Money Unlimited," The New Yorker, May 21, 2012.

like the doctrine of corporate personhood, which, while separate from campaign finance itself, mark a key point in recent judicial literature.9

The broad scope of the decision means that Citizens United v. FEC falls under a category of jurisprudence known as judicial maximalism. This paper will focus primarily on how the Roberts Court follows the practices of maximalism, and its counterpart, minimalism, within First Amendment, and, more specifically, campaign finance cases. Generally, the Roberts Court prefers to employ the practice of judicial minimalism. As described by legal theorist Cass Sunstein, minimalism is the philosophy of handing down narrow and shallow decisions such that the Court decides the specifics of a case rather than broad rules, thus avoiding setting large, expansive precedents.10 The theory of minimalism has two central tenets that dictate the doctrine: constitutional avoidance and judicial restraint.11 The doctrine of constitutional avoidance dictates that narrow decisions should be favored over broad decisions.12 Specifically, this doctrine argues that, even when faced with broad constitutional questions, the Court should avoid answering those questions by judging statutory alternatives or resolving those constitutional questions on narrow grounds, with the Roberts Court prizing constitutional avoidance as a way to form compromise and ensure consensus decisions.13 Judicial restraint ensures that decisions are determined based on solid, recent precedents, with the conservative wing of the Roberts Court,

9 Ibid.

10 Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (Cambridge, Mass.: Harvard University Press, 2001), 10

11 Laurence H. Tribe and Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution (New York: Henry Holt and Company, 2014), 104.

12 Ibid, 104.

13 Andrew Nolan, "The Doctrine of Constitutional Avoidance: A Legal Overview," Congressional Research Service, last modified September 2, 2014, 16-17

and specifically, Justice Roberts, generally supporting the doctrine of judicial restraint.14 Indeed, in the confirmation hearings of Roberts and Alito, both jurists advocated for strict adherence to past precedent in order to inform future decisions.15 Through avoidance, cases are decided narrowly; through restraint, cases are decided shallowly. Thus, these two doctrines form the bulk of the minimalist doctrine.

By creating a broad decision in Citizens United v. FEC, the Roberts Court appears to depart from its general adherence to minimalism as the conservative bloc of the Court rallied around the free speech maximalism of Justice Anthony Kennedy. The author will corroborate this postulation by showing, through both judicial writings and empirical analysis, that 1) the Roberts Court does follow minimalist procedures when the circumstances are favorable; 2) the circumstances of Citizens United v. FEC were indeed favorable for a minimalist decision; 3) Citizens United’s maximalism was not solely influenced by ideological motives, but was rather shaped by Justice Kennedy’s own maximalism and influence on the conservative bloc. Judicial Minimalism and the Roberts Court: How and when does the Roberts Court follow the minimalist doctrine?

The minimalist doctrine argues that jurists should rule both narrowly and shallowly, avoiding broad precedents. This doctrine can be clearly explained when divided into its two key components: constitutional avoidance and judicial restraint, and can be analyzed through judicial writings and empirical studies. The judicial writings of each member of the conservative wing

14 Daniel Fisher, "How Roberts and Kennedy Saved Supreme Court Conservatives From Themselves," Forbes, June 30, 2014

15 Geoffrey R. Stone, "The Roberts Court, Stare Decisis, and the Future of Constitutional Law," Tulane Law Review, last modified 2008, 1536.

will showcase their adherence to the minimalist doctrine, and a study of empirical analysis will corroborate the analysis of judicial writings.

Judicial Writings: Adherence to the Minimalist Doctrine in the Roberts Court Constitutional Avoidance

Constitutional avoidance, or the Ashwander doctrine, was set forth in the 1936 Supreme Court case Tennessee Valley Authority v. Ashwander. The doctrine suggests that the Court should limit broad precedents by ruling on statutory grounds.16 Jurists who follow avoidance canon prefer to seek alternative interpretations of legislation that preserve the constitutionality of statute rather than answering broad constitutional questions surrounding the particular case. As explained in a Congressional Research Service report analyzing the Ashwander doctrine and its influence on the Roberts Court, the Court does favor a statutory approach to many cases, favoring narrower judgments over broad, precedent-setting decisions.17 Individually, the members of the conservative bloc also closely follow the avoidance doctrine. While the empirical analysis will confirm overarching trends, the forthcoming judicial writings provide individual reasoning for why each justice in the conservative bloc supports avoidance doctrine.

First, Justice Antonin Scalia’s judicial writings highlight his support of constitutional avoidance. The Sixth Amendment case Almendarez-Torres v. U.S. serves as a prime example of Scalia’s opinions on avoidance. In the 1998 decision, the Court addressed a constitutional question over the Sixth Amendment’s requirement to a jury, focusing on the case of Hugo Almendarez-Torres, who had been indicted after being deported following convictions for aggravated felonies. The Court, with a 5-4 majority, held that sentencing enhancements based on

16 Nolan, "The Doctrine," Congressional Research Service, 15.

17 Ibid., 2, 11.

prior convictions did not require a jury to determine guilt beyond a reasonable doubt. Justice Scalia, writing for the minority, sided with liberal jurists Souter, Ginsburg, and Stevens, against Justices Breyer, Kennedy, and O’Connor as well as conservative jurists Rehnquist and Thomas.

Scalia, in his dissent, explained that 8 U.S.C. 1326, Subsections (a) and (b) could be construed in a reasonable interpretation that limits the extent of the ruling to the petitioner, specifically, who had been indicted for the illegal reentry into the U.S. after conviction of an aggravated felony.18 Scalia, under a reasonable interpretation of the statute, concluded that the petitioner’s sentence should be set aside, entirely avoiding the constitutional question at hand, stating: “I therefore do not reach the difficult constitutional issue in this case because I adopt, as I think our cases require, that reasonable interpretation of §1326 which avoids the problem.” putting forth his interpretation of avoidance canon.19 In essence, Scalia argues that if the Court is given two reasonable interpretations of a statute, one which is constitutional and one which is not, the Court is obligated to make decisions based on the legitimacy of the constitutional interpretation, rather than immediately striking the statute down. Scalia also notes in his dissent that the Court’s history and past decisions place emphasis on the doctrine of constitutional doubt, and that the majority’s incomplete burden of evidence does not meet the standard for abandoning the doubt doctrine.20 Almendarez-Torres is notable for being a case in which ideology did not drive the outcomes, with Justice Scalia siding with liberal justices on the strength of his convictions as to the doctrine of doubt. Almendarez-Torres showcases Scalia’s interpretation of the doubt doctrine, but it is his majority opinion in the 2005 Clark v. Martinez that explains Scalia’s motive

18 Almendarez-Torres v. U.S., 113 U.S. (1998).

19 Ibid.

20 Ibid.

for adhering to avoidance canon. In a case determining the validity of immigration statutes, the Court addressed the detention of inadmissible immigrants. The case was built off of a previous decision, the 2001 Zadvydas v. Davis, which questioned the extent of the plenary powers doctrine, and held that the plenary powers doctrine did not enable the government to indefinitely detain admissible immigrants whom no country will accept in deportation. Clark v. Martinez was designed to address the ambiguity that had been created in Zadvydas surrounding the ‘admissible’ nature of immigrants, and the majority concluded that the Zadvydas standard for deportation and detention extended to ‘inadmissible’ immigrants as well as ‘admissible’ ones. Specifically, Scalia concluded that if a statutory interpretation in Zadvydas applied to one group of nonresidents, then the same statutory interpretation should be extended to all groups of nonresidents. Scalia thus used constitutional avoidance to provide limited protection from indefinite detention, while not completely disallowing it. In his majority opinion, Scalia explains that the legitimacy of the avoidance doctrine stems from the idea that it preserves the original intent of the legislature: since Congress most likely does not intend unconstitutional statutes to take effect, a reasonable interpretation that is constitutional preserves original intent.21 This support derives from Scalia’s belief that the legislature serves as a better “expositor of societal values” than the courts, which Scalia expresses to the University of Cincinnati’s Law School in a lecture.22 Scalia noted that as the legislature was popularly elected, it reflects popular sentiment, and, as such, Scalia strongly supports the idea that the legislature is a better reflection of societal values as a representative body elected by the society rather than an unelected court which has a duty to preserve the rule of law.23 Clark v. Martinez is crucial as a 7-2 case in 2005 in which

21 Clark v. Martinez, 543 U.S. (2005).

22 Scalia, "Originalism: The Lesser," University of Cincinnati.

23 Ibid.

Scalia sided with the moderate Justices Sandra Day O’Connor and Kennedy as well as the liberal Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, against the conservative Justices Clarence Thomas and William Rehnquist, serving as an example of a case in which Scalia was influenced not necessarily by ideological motivations, but rather by judicial doctrine. Thus, Scalia argues that it is necessary to preserve the original intent of the legislature, and avoidance canon fulfills that goal.

Second, Justice Samuel Alito’s writings and judicial methodology show a clear support of avoidance doctrine. Alito generally favors a minimalist approach to constitutional questions, answering broad constitutional questions with case-specific answers or statutory interpretations, fulfilling avoidance canon, which is clear in Alito’s writings.24 For example, Alito’s dissent in the landmark gay marriage case Obergefell v. Hodges, which held that the right to marry is guaranteed to same-sex couples underneath the Fourteenth Amendment, was premised on a fear of overreach by the majority. Alito concluded that the majority’s actions within the case, by applying a right not considered in the constitution to the Due Process Clause (actions which the Court rejected in Washington v. Glucksberg), represented an overreach of power. Alito explained that “all Americans, whatever their thinking on [the] issue [of gay rights], should worry about what the majority’s claim of power portends.”25 Essentially, Alito argued that the majority’s scope of power was far too broad, and that the judicial powers required limitations within this case. While the question of gay marriage is one that certainly creates ideological polarization, what is notable about this decision is the fact that each of the four dissenters wrote individual

24 Neil S. Siegel, "The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent," Yale Law Journal, last modified October 18, 2016.

25 Obergefell v. Hodges, 576 U.S. (2015).

opinions, with Alito and Roberts both focusing their dissents on the doctrine of minimalism. All four jurists dissenting, however, did argue that the majority’s overreach went against the core premises of constitutional doubt and respect towards the political process, the summation of the avoidance doctrine. Alito’s adherence to minimalism is also clear in cases with far less ideological divisiveness. Indeed, Alito’s lone dissent in Johnson v. U.S. highlights Alito’s conformance to the minimalist doctrine even when he is the sole member of the Court to decide on that basis. In Johnson, the Court heard arguments as to the nature of the Armed Career Criminal Act (ACCA) and its residual clause. The ACCA imposed mandatory sentencing enhancements on defendants in possession of illegal firearms who had been convicted three or more times of violent felonies, and one of the definitions of ‘violent felony’ under the ACCA was an act that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”26 The Court held, with an 8-1 majority, that an increased sentence under this definition, the ACCA’s residual clause, was unconstitutionally vague and in violation of due process. Alito’s lone dissent in Johnson rebukes the majority for ruling in a broad, constitutional manner, setting precedents in the field of due process, when a narrower statutory interpretation of the ACCA would have upheld both the statute as well as the original conviction.27 Alito, in fact, reveals his justifications for following the doubt doctrine in Johnson, noting that the Court has the duty to place a pre-eminence on following avoidance canon to limit setting broad precedents. Third, Justice Thomas views constitutional avoidance similar to Scalia, and his writings mirror those beliefs.28 Similar to Scalia’s argument that avoidance canon preserves the original

26 Johnson v. U.S., 576 U.S. (2015).

27 Ibid.

28 Henry Mark Holzer, The Supreme Court Opinions of Clarence Thomas, 1991 -2011, 2nd ed. (Jefferson, N.C.: McFarland & Company, Inc., Pub., 2012), 57.

intent, Thomas argues that constitutional avoidance must be used through the tool of statutory intent, in order to preserve the core intent of the legislature.29 However, while Scalia’s belief in avoidance canon is predicated on Scalia’s faith in the legislature, Thomas’s support for avoidance canon is predicated on his lack of faith in the judiciary to remain independent. This support, and its rationale, is explicated in Thomas’ partial concurrence in the 9-0 Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v. Holder, where Thomas joined the eight members of the Court in one aspect, and was also the sole dissenter in its second aspect (making his writing both a partial concurrence and a dissent). In NAMUDNO, the Court addressed questions over Section 5 of the Voting Rights Act of 1965, and its requirement that certain states needed pre-clearance from the federal government prior to implementing changes in electoral law. The Court, in NAMUDNO, declined to rule on the constitutionality of the provision and specifically focused on the District itself, concluding that the district was eligible to apply for an exemption from Section 5. Thomas, in NAMUDNO, argues that avoidance preserves legislative intent by preventing judicial interpretation.30 Indeed, Thomas notes that constitutional avoidance is necessary because leaving broad constitutional questions to the whims of judicial interpretation allow for judicial bias to influence and shape broad precedents.31 As such, Thomas, argues in favor of the avoidance doctrine as a necessity to limit setting broad precedents that can be constructed through bias and preserve original intent. Finally, Chief Justice John Roberts is a consistent minimalist, advocating for the minimalist doctrine through his tenure on the Court.32 Roberts set his standard for avoidance

29 Ibid.

30 Northwest Austin Municipal Utility District Number One v. Holder, 573 U.S. (2009).

31 Holzer, The Supreme, 58.

32 Stone, "The Roberts," Chicago Unbound, 1538.

canon in the decision of National Federation of Independent Businesses (NFIB) v. Sebellius. In the landmark case surrounding the constitutionality of the Patient Protection and Affordable Care Act, commonly referred to as Obamacare, the Court upheld, in a 5-4 majority, the constitutionality of large swaths of Obamacare by referring to the Obamacare mandate for individuals to attain healthcare as a tax. Roberts wrote the decision himself, noting that “if there are two possible interpretations of a statute, and one of those interpretations violates the Constitution, the courts should adopt the interpretation that allows the statute to be upheld.”33

NFIB v. Sebellius serves as an important example of Robert’s minimalism, as Roberts decides independent of ideological or partisan bias (with other conservative jurists favoring the plaintiffs, but Roberts siding with the government), that avoidance canon is necessary in NFIB Specifically, Justice Roberts avoided the major question of constitutionality of Obamacare by classifying the individual mandate as a tax, constitutionally legitimate under Congress’ taxing powers. Roberts, by interpreting the individual mandate in an alternative fashion that would preserve its constitutionality, thus operated under avoidance canon to save the individual mandate. Roberts furthers this standard in his opinion in NAMUDNO v. Holder, where Roberts writes for a unanimous Court and argues that the Court must “not decide a constitutional question if there is some other ground upon which to dispose of the case.”34 Not only does Roberts place a clear emphasis on avoidance doctrine – writing opinions narrowly, chiding other justices for falling into broad, expansive decisions, and siding with minimalist decisions – but Roberts’ explicit definition of avoidance also dovetails with the definition that Scalia sets forth in Almendarez-Torres, as well as the rationales behind NAMUDNO and Johnson by Thomas and

33 National Federation of Independent Businesses v. Sebellius, 567 U.S. (2012).

34 Northwest Austin Municipal Utility District Number One v. Holder, 573 U.S. (2009).

Alito, respectively. Thus, there is consistent adherence and even a similar approach, if justified slightly differently, to the avoidance doctrine among the members of the conservative bloc.

Judicial Restraint

When the judicial restraint doctrine is followed, the Court chooses to uphold and revise precedent instead of outright overruling precedent, allowing for incremental changes. The Roberts Court, specifically, supports following precedent and allowing for an incremental approach to change cases over time.35 Constitutional avoidance and judicial restraint, while both essential components of minimalism, are thus different: constitutional avoidance is the premise that the Court shouldn’t wantonly create new precedent while judicial restraint is the premise that the Court shouldn’t wantonly overrule past precedent. Together, these doctrines form the backbone of the minimalist doctrine. Specifically, however, judicial restraint is important because it ideally restricts partisan behavior. As the Supreme Court is supposed to be a nonpartisan body not swayed by quick changes in public opinion, the design of the Court is, by nature, conservative rather than activist, and the restraint doctrine is designed to preserve the intent of the Court: limiting quick broad changes in favor of restraint and limited revising.36 As such, restraint centers around the idea that the Court should respond over time by analyzing legal and constitutional precedents as opposed to ruling on the basis of political favoritism or opportunism.37 Not only has the Roberts Court overall followed precedent, but the conservative members of the Roberts Court also closely adhere to precedent when making decisions.

35 Citizens United v. FEC, 205 U.S. (2010).; Fisher, "How Roberts," .

36 Stone, "The Roberts," Chicago Unbound, 1545.

37 Ibid., 1545, 1553.

Justice Scalia often considers himself bound by judicial restraint, and his writings support his views.38 A crucial example of Scalia’s support of restraint comes in Burnham v. Superior Court of California. In Burnham, the Court addressed the question of whether a state should be able to exercise ‘personal jurisdiction,’ under the Fourteenth Amendment, over a non-resident of the state who was served while temporarily visiting the state. Burnham was notable because all nine justices agreed that ‘personal jurisdiction’ was legitimate but could not agree on how that jurisdiction was justified. Scalia offered the plurality opinion, with three other justices adhering to his argument, and noted that that the issue of ‘personal jurisdiction’ was irrelevant; rather, the true question should be whether the Court rules on it in the first place. Scalia argued that essential precedents should be maintained, and the Court should not be settling this decision.39 Specifically, Scalia left out a policy basis for his opinion in Burnham, and instead stated that the Court was “leaving that judgment to the legislatures that are free to amend it.” 40 Here, Scalia highlights the importance of legislative superiority in determining cases. Indeed, Scalia’s justification for abiding by the restraint doctrine, as evidenced in Burnham, is equivalent to his justification for the avoidance doctrine: his belief that the legislature serves to better represent the will of the people than the Court, such that the Court should refrain from making broad decisions in favor of Congressional action.41 In cases that can be swayed by public opinion, Scalia views the Court as a body that should prefer to defer to precedent to avoid contradicting the intent of legislative decisions. Scalia’s dissent in U.S. v. Windsor, an admittedly polarizing 5-

38 Scalia, "Originalism: The Lesser," University of Cincinnati.

39 Burnham v. Superior Court, 495 U.S. (1990).

40 Ibid.

41 Scalia, "Originalism: The Lesser," University of Cincinnati.

4 decision surrounding the legality of gay marriage that struck down the Defense of Marriage Act, highlights this deference to precedent, and, more importantly, to the Constitution’s original text, when Scalia writes that the Supreme Court “[has] no power under the constitution to invalidate this democratically adopted legislation.”42 Scalia’s opinion here is notable as it relied upon a different interpretation than the other dissents authored by Alito and Roberts, with Scalia describing the majority’s ‘confusing’ use of the equal protection doctrine in conjunction with federalist powers as a violation of restraint, while Alito and Roberts argued against the majority’s interpretation of federalist powers. Scalia, however, does present a similar argument in terms of avoidance: Scalia essentially argues that the Court lacks the justification to rule so broadly, striking down an established law and overturning precedent. Windsor thus serves to explicate Justice Scalia’s perspectives on restraint as well as how they relate to other jurist’s views on the doctrine.

Justice Alito’s support for restraint doctrine is clear, and it derives from his confidence in the judiciary as time progresses. In a speech at Columbia Law School, Alito argues that “we can have greater confidence in established rules that have been tested and refined over time.” supporting the idea that established doctrines and precedents are far more important than flashy, new precedents that lack the body of agreement which established rules accumulate over time.43 Furthermore, Alito argues that justices need to respect prior decisions in order to prevent unintended consequences of “ill-considered judicial innovations.”44 Alito’s writings highlight his trust in established rules. In the labor relations case of Harris v. Quinn, the Court blocked

42 United States v. Windsor, 570 U.S. (2013).

43 "U.S. Supreme Court Justice Samuel Alito Says Pragmatism, Stability Should Guide Court," Columbia Law School, last modified April 24, 2012.

44 Ibid.

Illinois’ union security agreements under the First Amendment. However, Alito argued in the majority opinion in Harris that needed to shy away from overturning precedent, and, as such, Alito’s opinion criticized the underlying precedent, Abood v. Detroit Board of Education, without invalidating it or overturning the previous decision.45 However, while Harris v. Quinn was a 5-4 case decided on ideological lines, Alito also argues this way in cases independent of partisan behavior or ideological motives. For example, Alito’s lone dissent in the free speech case of Snyder v. Phelps was predicated on Alito’s argument that the majority disrespects precedent regarding exemptions to the First Amendment by ruling in favor of Phelps’ freespeech argument. In Snyder v. Phelps, the Court held that even ‘outrageous’ speech in a public place about a public issue cannot be held liable for tort claims, while Alito cited previous judicial precedent to the cause of rational discourse to suggest that there were exemptions to First Amendment discourse that the majority should have relied upon in making their decision. Specifically, Alito argued that the hate-speech exceptions to First Amendment discourse should extend towards the “vicious verbal assault [and] … the brutalization of innocent victims” seen in the case, and that the majority’s decision fails to respect both precedent and free and open debate.46 Alito’s rulings through his judicial restraint philosophy mark him as the conservative justice on the Court least supportive of broad free-speech rights, making his decision in the free speech case of Citizens United more surprising.47

Justice Thomas’ support for judicial restraint is similar to his support for avoidance, with Thomas believing that judicial restraint is a binding principle that limits judicial discretion.

45 Harris v. Quinn, 573 U.S. (2014).

46 Snyder v. Phelps, 562 U.S. (2011).

47 Neil S. Siegel, "The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent," Yale Law Journal, last modified October 18, 2016.

Thomas explains that “in order to maintain our impartiality, judges must also adopt methodologies and principles that encourage restraint.”48 Specifically, Thomas argues that judicial restraint is needed to prevent individual biases among justices from influencing cases, and consistently employed judicial restraint while on the Court of Appeals.49 Essentially, Thomas affirms that justices should rely on precedent to establish decisions and shy away from overturning past Court decisions and has consistently advocated for and employed the restraint doctrine both through his time on the Court of Appeals and on the Supreme Court.50 In this manner, Thomas’ views on restraint closely parallel not only his views on avoidance, but also resemble Scalia’s perspectives on restraint: Scalia believes that justices should respect precedent such that their individual opinions are not taken into consideration over the original intent of the statute, and Thomas believes that justices should respect precedent such that their individual opinions and individual biases will not factor into the decision.

Finally, Justice Roberts’ commitment to minimalism can be seen starting from his confirmation to the Supreme Court, where Roberts vowed to be bound by judicial restraint.51

Furthermore, his opinion in NFIB v. Sebellius is a case of not only avoidance but also restraint. Roberts interprets the statute in a manner designed to, first, ask as few constitutional questions as possible, following avoidance doctrine, and, second, give the government maximum leeway to make an effective case.52 This encompasses the restraint doctrine because Roberts argues against

48 David M. O'Brien, Judges on Judging: Views from the Bench, 5th ed. (Washington DC: SAGE/CQ Press, 2017), 223.

49 Ibid., Elizabeth McCaughey, "The real Clarence Thomas: A record of restraint," The Baltimore Sun, September 10, 1991.

50 O'Brien, Judges on Judging, 225.

51 Stone, "The Roberts," Chicago Unbound, 1536.

52 National Federation of Independent Businesses v. Sebellius, 567 U.S. (2012).

intervention by the judicial branch and alteration of precedent, even saying that “it is not [the Court’s] job to protect the people from the consequences of their political choices.” arguing against intervention in an act by the elected Congress and president with a mandate to lead.53 Roberts was also on the opposite side of the ‘conservative’ standpoint in NFIB v. Sebellius, suggesting that his commitment to minimalist doctrine is more important than ideological leanings. Finally, Roberts places significant importance on conferencing with justices before writing opinions in order to form consensus routes to a decision, saying that he prefers narrower decisions that attract more consensus rather than broad, 5-4 decisions. As such, Roberts uses the promise of judicial restraint to achieve that consensus, favoring narrow decisions that respect past precedent.54 The analysis of these writings highlights that, while the jurists do have different interpretations and justifications for minimalism, there is a clear adherence to these minimalist doctrines of avoidance and restraint, and the individual justices’ conceptions of minimalism do parallel their fellow justices’ ideas.

Empirical Analysis: How often does the Roberts Court follow judicial minimalism?

There are two major empirical analyses on recent Courts and minimalism: the first is by Robert Anderson IV, Associate Professor at Pepperdine University’s School of Law, and the second is by J. Mitchell Pickerill and Artemus Ward, Professors of Political Science at Northern Illinois University. These analyses both encompass several aspects of the Court’s minimalism. Anderson’s analysis examines the Rehnquist Court from 1994 to 2005, and the 2005 and 2006 opinions of the Roberts Court. Anderson proposes an empirical definition of the minimalist meta-doctrine by analyzing the ‘minimalist space’ between justices. In effect, Anderson studies

53 Ibid.

54 J. Mitchell Pickerill and Artemus Ward, “Measuring Judicial Minimalism on the Roberts Court”, August 21, 2013, 5.

the differentiation between the reasoning that justices use to support their argumentation and creates a metric for relative minimalism on the Court, highlighting the incorporation of statutory interpretation, judicial review, and more in judicial opinions. Pickerill and Ward’s analysis covers more of the Roberts Court, analyzing the Court from 1994 to 2012, and comparing the Rehnquist Court to the Roberts Court in assessing constitutionality of federal legislation. Pickerill and Ward quantified minimalism by separating cases into five major categories: Uphold Broad, Uphold Narrow, Strike as Applied, Strike Narrow, Strike Broad. Cases that fall into the second, third, and fourth category are minimalist (involving statutory interpretation), and cases that fall into the first or fifth category are broad (as they involve judicial review).

These studies also reveal how often the members of the Roberts Court, and the overall Court, follow the doctrine of judicial minimalism. Anderson’s early analysis of the Roberts Court reveals a consistent adherence to minimalism. The metric proposed in Anderson’s analysis estimates that Roberts (at the start of the Roberts Court) himself was the second most minimalist member of the Court (with the first being Souter). Anderson also notes that Justice Alito is only slightly more maximalist than Roberts. As such, Anderson argues that the replacement of minimalist jurist Sandra Day O’Connor and the more expansive William Rehnquist with minimalists Roberts and Alito means that the Roberts Court will continue, if not increase, the Court’s reliance on the minimalist doctrine.55 Pickerill and Ward’s analysis, seven years into the Roberts Court, supports the inferences that Anderson had drawn surrounding the Roberts Court. Their analysis reveals that the Roberts Court relies on minimalist doctrine to a far greater degree than the Roberts Court. Specifically, Pickerill and Ward describe the components of the

55 Robert Anderson, IV, "Measuring Meta-Doctrine: An Empirical Assessment of Judicial Minimalism in the Supreme Court," Harvard Journal of Law and Public Policy, 1045th ser., 32, no. 3 (August 29, 2007): 47-50.

minimalist doctrine, including passive virtues, which argues that jurists should use statutory interpretation to save a statute and assume that the legislature intended the constitutional interpretation of the statute when the statute was originally passed, and note that this avoidance doctrine is followed far more in the Roberts Court than it was in the Rehnquist Court.56 Specifically, Pickerill and Ward conclude that the Roberts Court handed down minimalist decisions in 82.1% of the cases in which the constitutionality of federal legislation was challenged.57

Finally, these analyses are critical in providing an understanding of the circumstances in which the Court follows the minimalism doctrine. As Pickerill and Ward explain, there are three clear criteria. First, the case must lack statutory alternatives. Anderson’s analysis argues that the Roberts Court, in its early years, makes maximalist decisions when statutory alternatives are lacking. In essence, the Court does follow avoidance procedure, as it exhausts every interpretation possible before ruling a statute unconstitutional. However, Anderson notes that when those statutory alternatives are lacking, the Court has no choice but to rule maximally.58

Pickerill and Ward confirm this in their empirical analysis, noting that Roberts Court, when faced with one sole interpretation, is more likely to ‘Uphold Broad’ or ‘Strike Broad’ than decide narrowly or ‘as applied.’ The second cause of a maximalist decision is the lack of clear precedent. Pickerill and Ward note in their analysis that aged or unclear precedents make precedents less relevant and less important, so the Roberts Court is more likely to overrule precedent and rule maximally. This step is not exclusive to the Roberts Court, but is instead one

56 Pickerill and Ward, “Measuring Judicial”, 2, 10.

57 Ibid.

58 Anderson, "Measuring Meta-Doctrine”, 14.

followed throughout the history of the Court. Incremental change in society and policies make older precedents less applicable to modern society. An empirical analysis by Michigan State University professor Ryan Black and Washington University of St. Louis professor James Spriggs confirms this theory by noting in an analysis of the Supreme Court between 1946 and 2004, even relevant precedents are cited 72% less within ten years than at the outset of the precedent.59 The final cause of a maximalist decision on the Roberts Court is that the issue is affected by rapid social change. Pickerill and Ward explain that broad societal movements will cause the Court to decrease their reliance on the minimalist doctrine. This also connects to the cause of a case lacking clear precedent, as broad societal movements increase the rate at which the precedents decay in value, effectively making older precedents irrelevant even more quickly.60 As such, when the landscape of an issue profoundly changes, old precedents become irrelevant, and judicial restraint is simply less feasible.

Thus, this section has made three important points: first, judicial writings support the idea that the conservative wing of the Roberts Court follows minimalist doctrine; second, empirical analysis corroborates the theory that the Court is minimalist; and third, there is a clear set of criteria that explain the maximalist nature of decisions by the Court. This paper does not suggest that the conservative jurists act as a unified wing in every case, nor does it suggest that the jurists all have the same interpretation of minimalism. However, what the empirical analysis and judicial writings highlight is that these judicial interpretations of minimalist doctrine do serve to unify the conservative wing in a number of cases, and that members of the conservative wing do place a clear emphasis on following the minimalist doctrine. The next section will discuss both

59 Ryan C. Black and James F. Spriggs, II, "The Citation and Depreciation of U.S. Supreme Court Precedent," Journal of Empirical Legal Studies 10, no. 2 (June 2013).

60 Black and Spriggs, "The Citation”

why the circumstances behind Citizens United lend themselves to a minimalist decision by conservative jurists and why Citizens United was decided maximally, and the final section of this paper will discuss a possible causative factor for the aberrant jurisprudence.

Judicial Minimalism and Citizens United: Should the maximalist doctrine have applied in Citizens United v. FEC?

The previous section of this paper outlines the maximalist doctrine and the circumstances in which it is followed by members of the conservative bloc on the Court. Using the criteria for maximalism provided in the first section, this section analyzes the circumstances behind Citizens United and asks two key questions: first, what doctrine was most likely to be followed given the background of Citizens United; and second, what doctrine did the jurists deciding Citizens United follow?

What doctrine should jurists deciding Citizens United have followed?

As defined by the first section, the minimalist doctrine centers around two principals –avoidance and restraint, effectively the idea that jurists should rule both narrowly and shallowly. Furthermore, the first section posits three criteria which, empirically, overwhelmingly lend themselves to maximalist rather than minimalist decisions: an issue with a lack of clear statutory alternatives, an issue with a lack of clear and recent precedents, and an issue affected by rapid social change. The first half of this second section will explain how Citizens United’s background circumstances lend themselves towards minimalism as it meets none of the three categories.

Statutory Alternatives

A core tenet of minimalism is constitutional avoidance, operating on the premise that a question challenging the constitutionality of a statute can be resolved by providing an alternative,

but constitutional, interpretation of the original statute. As such, a minimalist decision is one that incorporates statutory alternatives, resolving decisions legally instead of constitutionally, and decisions that have clear alternatives are more likely to be minimalist, as Anderson’s analysis highlights.61 Thus, if Citizens United does not have statutory alternatives, it lends itself to a maximalist construction.

However, there are two clear statutory alternatives, one of which was the basis of the original decision. First, the definition of ‘electioneering communications’ in the Bipartisan Campaign Reform Act, and, second, the Snowe-Jeffords Amendment. In the first case, surrounding the definition, Justice Roberts, who wrote the original opinion, wanted to rule on the basis of the type of speech that was banned under the BCRA.62 Specifically, Roberts wanted to rule that Citizens United did not fall into the provisions of the BCRA, and that the McCainFeingold law did not apply to the documentary which Citizens United had distributed prior to the election. This can be clearly contrasted with the eventual decision, as this original opinion is far more minimalist in avoiding a constitutional resolution to the original question posed, and hands down a statutory answer instead.63 Roberts’ opinion, however, was rejected by the Court, which rallied around an expansive concurrence by Kennedy that eventually became the majority opinion of the Court.64

Moreover, the Snowe-Jeffords Amendment within the BCRA offers another statutory alternative. The Snowe-Jeffords Amendment puts forth an alternative definition of corporations

61 Anderson, "Measuring Meta-Doctrine”, 14.

62 Toobin, "Money Unlimited ”

63 Citizens United v. FEC, 205 U.S. (2010).

64 Ibid.

based on their profit status and, if applied within the decision, would allow the Court to rule that non-profits are not bound by the BCRA while for-profit corporations were.65 Specifically, the corruption standard set in previous precedents such as Austin v. Michigan Chamber of Commerce and McConnell v. FEC would have been upheld, as it would have ensured that large for-profit corporations like Apple and Goldman Sachs were still limited in their independent expenditures. While this would have been more expansive than ruling on the definition of ‘electioneering communications,’ the Snowe-Jeffords Amendment offered a way for the Court to preserve the corruption test set forth in previous precedents while still ruling in favor of Citizens United, which, as a non-profit, would have been exempt from the BCRA under Snowe-Jeffords application.66 However, Snowe-Jeffords and definitional rulings still offer a path for the Court to rule through avoidance doctrine, and preserve minimalism.

Clear and Recent Precedents

Judicial restraint is the other core tenet of minimalism, holding that the Court should preserve precedent in order to accomplish incremental change and limit broad, expansive decisions. As described in section one and the analysis put forth by Pickerill and Ward, the conservative bloc is more likely to rule maximally when precedents are lacking.67 Thus, if Citizens United had no clear or recent precedents, a maximalist construction is more likely.

However, as Justice Stevens points out in his dissent, the Court’s Citizens United majority choses not to rule on the basis of recent precedents set in Austin v. Michigan Chamber of Commerce, which established the corruption test, McConnell v. FEC, which upheld the BCRA

65 Kathleen M. Sullivan, "Free Speech and ‘Hillary: The Movie’: A Wiser Middle Course," The New York Times, September 9, 2009.

66 Ibid.

67 Pickerill and Ward, “Measuring Judicial”, 2, 10.

when challenged on free speech grounds, and Wisconsin Right to Life PAC v. FEC, which upheld the McConnell and Austin decisions.68 And while the Austin decision set the precedent from 1990, McConnell was decided in 2003 and WRTL was decided in 2007, both providing recent precedents that the Court could draw upon in Citizens United. Judicial restraint and judicial minimalism could have been upheld either by narrowing the scope of the Citizens United decision, following the avoidance doctrine, or by upholding the Austin, McConnell, and WRTL precedents, yet the majority chose not to rely on precedent and instead offered an expansive, maximalist decision overturning those recent precedents.

Broad Social Change

The first section sets forth a final criterion for maximalist decisions – whether there was an element of broad social change favoring one side. At that point, Pickerill and Ward suggest that a significant societal movement will decrease reliance on even recent precedent.69 However, Citizens United also lacked this third criterion, as, simply put, campaign finance is not significantly influenced by social change. Indeed, the lack of public discussion surrounding campaign finance highlights an apathy towards campaign finance as an issue: only 10% of Americans followed the debate over the BCRA closely.70 However, even if campaign finance had been a significant social issue, the landscape in both politics and public opinion was largely pro-regulation, with 76% of Americans surveyed in agreement with the idea of the BCRA –implementing contribution limits on soft money for campaigns.71 Moreover, the 2008 election highlights the support for campaign finance regulation among politics, where both major

68 Citizens United v. FEC, 205 U.S. (2010).

69 Pickerill and Ward, “Measuring Judicial”, 4, 13.

70 "Why American's Aren't Stirred by Campaign Finance Reform," Pew Research Center, last modified March 27, 2001.

71 Ibid.

nominees were staunch opponents of loose campaign finance regulation, with Senator John McCain as the architect of the BCRA and then-Senator Barack Obama preventing the DNC from accepting donations from PACs or federal lobbyists.72 Indeed, not only the federal level but the state level was conducive to regulation, with growing numbers of states adopting increased regulations in the late 1990s and early 2000s.73 Moreover, President Bush’s encouragement of stricter standards for campaign finance as well as the efforts by sponsors of the BCRA saw an increase in popularity for campaign finance laws, with three quarters of Americans supporting stricter campaign finance laws in 2001 as opposed to two thirds of Americans the year before, highlighting both the political and public support for campaign finance regulation.74 Finally, even after the Citizens United decision, there was consistent disapproval with the decision, with 80% of those surveyed disapproving of Citizens United and 65% strongly disapproving, and a strong desire for stricter laws on campaign finance, with 71% surveyed believing that individual contributions to campaigns should be limited and 76% believing that PAC contributions should be limited.75 Thus, campaign finance was not an issue broadly influenced by public opinion, and the landscape was overwhelmingly geared towards regulation.

What doctrine did jurists follow in deciding Citizens United?

The background circumstances of Citizens United lend themselves to a minimalist approach, failing to meet any of the criteria that maximalist decisions meet, leading to the third

72 David B. Magleby and Anthony Corrado, Financing the 2008 Election (Washington, DC: Brookings Institution Press, 2011), 37.

73 Donald A. Gross and Robert K. Goidel, The States of Campaign Finance Reform (Columbus: Ohio State University Press, 2003), 64.

74 Dan Merkle, "Poll: Few Demand Campaign Reform," ABC News, March 27, 2001.

75 Cornell University, "Money, Politics, and the American Public," Roper Center for Public Opinion Research, last modified October 14, 2014.

question of this section: was Citizens United a maximalist or a minimalist decision? From the broad effects – overturning regulations, setting expansive precedents, and establishing strict tests limiting regulations, Citizens United represented a broad, expansive decision rather than a narrow and shallow one, thus making it a maximalist decision.

First, Citizens United undermined the foundation of campaign finance reform by eliminating the BCRA, reshaping the face of campaign finance law.76 The absence of strong federal regulation surrounding the issue of campaign finance not only represented a significant departure from the federal landscape, but also encouraged challenges to campaign finance laws in individual states across the nation, creating a torrent of money into politics.77 These fundamental changes represented a clear example of a broad, expansive outcome arising from the decision.

Moreover, Citizens United created broad precedents, specifically creating a doctrine of corporate personhood. Citizens United, extending rights granted to an individual in Buckley v. Valeo in 1976, essentially argued that corporations had the same First Amendment rights that people did.78 This precedent was most notably utilized in two separate decisions: SpeechNow.org v. FEC, and Burwell v. Hobby Lobby. In SpeechNow, the D.C. Circuit Court of Appeals drew upon the Citizens United decision and the precedent of corporate personhood to establish the constitutionality of Super PACs, which offered another avenue for wealthy donors to compile large sums of money to spend independently of campaigns without abiding by previously

76 Kenneth P. Vogel, Big Money: 2.5 Billion Dollars, One Suspicious Vehicle, and a Pimp-on the Trail of the Ultrarich Hijacking American Politics (New York: PublicAffairs, 2014), 232.

77 Jane Mayer, Dark Money: The Hidden History of the Billionaires behind the Rise of the Radical Right (New York: Doubleday, 2016), 183-185.

78 Citizens United v. FEC, 205 U.S. (2010).

existing transparency regulations.79 In Burwell, the Court used the definition of corporate personhood in Citizens United to extend the First Amendment right of freedom of religion to corporations. This precedent allowed the Court to strike down the Obamacare contraceptive mandate, which forced companies to provide birth control as part of their insurance.80 As such, Citizens United created a broad precedent in corporate personhood that had clear after-effects in future Court decisions.

Finally, Citizens United established a strict test of corruption, limiting corruption only to quid-pro-quo corruption and overturning the corruption and anti-distortion of speech rationale set in Austin 81 Overturning the corruption precedent set previously represented aberrance from the restraint doctrine, and set a long-lasting precedent for a new standard of corruption.82 However, more importantly, a new standard limiting corruption only to quid-pro-quo corruption limits government regulation as it increases the ability of the Court to strike down regulations made in the name of limiting corruption.83 This has clear impacts: in the case of Citizens United alone, the government put forth arguments centered around preventing corruption and the distortion of speech stemming from corruption, and a strict test of corruption would prevent the government from offering arguments in the future made in the name of limiting corruption.84 As such, the new corruption standard offers expansive action, and thus a maximalist construction of the issue.

79 "Speechnow.org v. FEC," Federal Election Commission.

80 Burwell v. Hobby Lobby Stores, 354 U.S. (June 30, 2014).

81 Citizens United v. FEC, 205 U.S. (2010).

82 Heath A. Brown, Pay-to-play Politics: How Money Defines the American Democracy (Santa Barbara, CA: Praeger, 2016), 16.

83 Brian J. Brox, Back in the Game: Political Party Campaigning in an Era of Reform (Albany: State University of New York Press, 2013), 25.

84 Tribe and Matz, Uncertain Justice, 139.

The background circumstances behind Citizens United suggest that the conservative bloc would employ a minimalist construction, but the outcome was that of a maximalist decision. The third section of this paper will describe possible factors for that outcome.

Kennedy and the Roberts Court

From the previous two sections, it is clear that the members of the conservative wing depart from principles which they consider important in making a decision in Citizens United. While the minimalist doctrine is one consistently followed by both the conservative jurists and the overall Roberts Court, this doctrine was lacking in Citizens United despite the circumstances surrounding Citizens United lacking the typical factors that cause the Roberts Court to rule maximally in other cases. This aberrant jurisprudence leads to the major question this paper puts forth – why did Citizens United become a maximalist decision? This section puts forth two central arguments: first, that Justice Anthony Kennedy is a maximalist in the field of campaign finance and First Amendment rights, and second, that the maximalism of the Citizens United decision is influenced by the conservative wing unifying along Justice Kennedy’s stated First Amendment maximalism. This section will utilize both empirical analysis, and the judicial opinions of Kennedy to explicate this analysis. First, this section will show how Kennedy acts as a maximalist in First Amendment issues, then, this section will show how and why Kennedy’s leanings are important in Citizens United and how they influence the conservative wing.

Kennedy’s Maximalism on First Amendment Issues – Analysis of Judicial Writings

Over time, the Roberts Court has overall become not more conservative, nor more liberal, but rather, has seen a trend towards overturning government regulation within the Roberts Court. Simon Lazarus, legal scholar at the progressive Constitutional Accountability Center, argues that the Roberts Court has not actually ‘inched right,’ as critics claim, but has rather been swept up in

a wave of rising anti-regulatory stances. This proclivity towards overturning statutory regulation manifests itself in not only conservative causes, but across an ideological spectrum as well. Even in cases favoring liberal causes, such as the decision in U.S. v. Windsor, this ideology was clear as the Court struck down government regulation on same-sex marriage. But no justice is as representative of this trend as Justice Kennedy. Because Kennedy represents the swing vote on the most recent iteration of the Court, with four liberal jurists (Kagan, Sotomayor, Breyer, Ginsburg) and four conservative jurists (Alito, Roberts, Thomas, Scalia), Kennedy, in the ideological middle, has been influenced less by the polarization of the Court and the public and has rather continued as a moderate conservative, with a strong adherence to limiting government regulation.85 Indeed, Laurence Tribe, noted Professor of Constitutional Law at Harvard Law School, notes that, in terms of First Amendment literature, Kennedy prefers to rule broadly against government regulation, giving him a maximalist streak in free speech cases.86 More specifically, Kennedy’s maximalism shines through in the field of campaign finance, a branch of First Amendment jurisprudence. For example, Kennedy’s partial dissent from the 2003 case McConnell v. FEC, upholding the validity of the Bipartisan Campaign Reform Act, bemoans the constraint of government regulation on political spending.87 Kennedy argues that the regulations placed by the BCRA “dismantle basic protections for speech” and calls for the overturning of the 1990 Austin v. Michigan Chamber of Commerce, in which the Court upheld the validity of contribution limits on corporations by holding that “corporate wealth can unfairly influence

85 Raymond J. La Raja and Brian F. Schaffner, Campaign Finance and Political Polarization: When Purists Prevail (Ann Arbor: University of Michigan Press, 2015; Kelso, R. Randall. “Justice Kennedy’s Jurisprudence on the First Amendment Religion Clauses.” McGeorge Law Review 44, no. 1 (January 2013).

86 Laurence H. Tribe and Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution (New York: Henry Holt and Company, 2014), 104.

87 McConnell v. FEC, 1674 U.S. (2003).

elections.”88 Kennedy’s maximalism in First Amendment issues is also showcased in his concurrence to the original decision of Citizens United, after the first argument, which mirrors his dissent in McConnell and argues, again, for the broad removal of government regulation on campaign finance.89 While judicial writings suggest that Kennedy is a maximalist on First Amendment issues specifically, empirical analysis is needed to corroborate this hypothesis.

In the absence of empirics specifically exploring Kennedy’s maximalism in First Amendment issues, the author provides empirical analysis, using Washington University at St. Louis’ Supreme Court Database hosted at http://scdb.wustl.edu/, by drawing upon the works of Pickerill, Ward, and Anderson, replicating their methodologies but targeting a different collection of cases to substantively corroborate Kennedy’s maximalism. A full explication of the methodology of this analysis, detailing the dataset, tools, preprocessing of data, and measurements for success, is contained within Appendix 1.

Empirical Analysis Confirming Kennedy’s Maximalism on First Amendment Issues

In order to determine how Kennedy influenced maximalism on First Amendment issues, this section of empirical analysis contained four major parts: first, Kennedy’s effect on overall maximalism; second, whether this maximalism can be linked to Kennedy, specifically; third, Kennedy’s ideological maximalism on First Amendment cases; and, finally, Kennedy’s effect on First Amendment cases decided by the Court.

The first trial relied on three key variables: first, the minimalism score variable, which is thoroughly described in Appendix 1 and provides a score for the minimalism in each case (with a lower score representing a more minimalist decision and a higher score representing a more maximalist decision); second, the ‘majority’ variable, which is present in the database, and is

88 Ibid; Austin v. Michigan Chamber of Commerce, 494 U.S. (1990).

89 Toobin, "Money Unlimited.”

assigned a 1 when a jurist is dissenting from the overarching opinion, and a 2 when the jurist is part of the majority; and third, the ‘Issue Area’ variable, present in the database, and is one of 14 different values, (see http://scdb.wustl.edu/documentation.php?var=issueArea). If Kennedy is indeed maximalist, and affects maximalism on the overall Court, then the value of the Minimalism Score variable, which accounts for the minimalism of the decision, should increase when Kennedy joins the decision, even when holding the issue area constant. Thus, there should be a positive correlation between ‘majority’ and ‘minimalism score’ when the regression is performed. Examining Kennedy’s 2583 votes on the Court (through 2016), there was a positive correlation between ‘majority’ and ‘minimalism score’ with a significance value of 0.0049 when controlling for ‘issue area,’ meaning that the regression was highly statistically significant. This first trial provides substantive evidence that when Kennedy joins the decision of the Court, it becomes more maximalist, regardless of the specific issue which the decision covers.

Second, in order to show that Kennedy is the causative factor behind a more maximalist decision, the frequency of Kennedy’s opinions and the resulting maximalism should be analyzed. If Kennedy is writing the opinion, and maximalism increases, Kennedy can be attributed as the causative factor to a more maximalist decision, as Kennedy himself would obviously affect the maximalism of the decision depending on the maximalist nature of his opinion. Here, the important variables are ‘issue area,’ ‘minimalism score’ and ‘opinion,’ which, similar to ‘majority’ and ‘issue area,’ already exist within the database. ‘Opinion’ is given a value of 1 when the justice does not write an opinion, and 2 when the justice does write an opinion. If Kennedy does increase maximalism, a positive correlation that is significant should be shown, as that would mean that when ‘opinion’ increases, and Kennedy writes an opinion, ‘minimalism score’ increases, so the maximalism of the decision would increase. Examining the cases in

which Kennedy is part of the majority, ‘opinion’ is positively correlated with ‘minimalism score’ with a significance value of 0.0179. This regression also controlled for issue area (creating a correlation between ‘opinion’ and ‘minimalism score’ while keeping issue area constant, and compiling the net results). This trial shows that, when Kennedy authors an opinion, the decision is consistently more maximalist than when another jurist authors the majority opinion.

Third, knowing that Kennedy is a maximalist, it is important to analyze First Amendment cases. The writings in the earlier part of the third section suggest that Kennedy is maximalist specifically in First Amendment cases, and that needs to be corroborated with empirical analysis.

Here, a re-valuation of the ‘Issue Area’ variable was necessary, to filter cases which were First Amendment decisions from those that were not. Cases that were First Amendment decisions received a normalization of 1, cases that were not received a normalization of 0. If Kennedy is indeed more maximalist on First Amendment issues, there should be a positive correlation between the issue area and the minimalism score. This trial analyzed cases in which Kennedy was part of the majority, and found that ‘issue area’ was significantly positively correlated with ‘minimalism score,’ with a p-value of less than 0.001. This highly significant regression serves as strong evidence that Kennedy deciding on First Amendment issues is more maximalist than Kennedy deciding on other issues.

Finally, examining minimalism score and majority, this trial repeated the first trial for the 130 First Amendment cases which Kennedy saw during his time on the bench. In these cases, ‘majority’ is positively correlated with ‘minimalism score’ with a p-value of 0.05. Similar to the first trial providing substantive evidence that Kennedy consistently increases maximalism on the Court, regardless of issue area, this trial shows that he specifically increases maximalism in the area of the First Amendment.

These empirics reinforce the analysis of judicial writings provided earlier in this section, and examples of these empirical results are clear in Kennedy’s jurisprudence on the Court. For example, the two cases of Rosenberger v. Rector and Visitors of the University of Virginia and Legal Service Corporation v. Velasquez serve as important examples in conjunction with the empirical analysis. In Rosenberger, Kennedy joined the conservative justices in a 5-4 decision, and wrote a broad opinion arguing that the University of Virginia should not be able to place limits on religious publications that are not equally applied to secular publications. Kennedy’s opinion highlighted Kennedy’s disapproval for the limits the university placed on First Amendment rights, and represented a broad decision affecting university regulation on student religious organizations.90 Kennedy’s broad majority opinion in Rosenberger should be specifically contrasted with the concurrence written by Justice Sandra Day O’Connor, who analyzed the case specifically on the basis of the University of Virginia. Justice O’Connor pointed out four considerations that would allow the university to fulfill its obligation under the Establishment clause while allocating equal funding to the student religious publication.91

O’Connor’s concurrence, which would represent the majority opinion if Kennedy had not authored the opinion, is clearly minimalist – answering the question posed in the case solely for the University of Virginia, thus avoiding the establishment of any broad precedents.92 Kennedy’s decision, on the other hand, is a clearly maximalist decision, as he sets a broad precedent on the grounds of viewpoint discrimination, arguing that universities cannot exclude funding from religious publications while granting it to secular ones. This example essentially reinforces the

90 Rosenberger v. University of Virginia, 515 U.S. (June 29, 1995).

91 Ibid.

92 McGeorge Law Review 44, no. 1 (January 2013).

results of Trial 2 – when Kennedy writes the opinion of the majority, the decision becomes more maximalist. While Rosenberger represented Kennedy joining with the conservative jurists, Velasquez saw similar rationales from Justice Kennedy and a similar maximalist outcome when Kennedy joined the liberal justices in a 5-4 decision. Specifically, Kennedy’s opinion in Velasquez broadly struck down government restrictions on the Legal Services Corporation in order to promote private speech.93 Velasquez was more maximalist than previous rulings on viewpoint discrimination by the liberal wing at the time, setting expansive precedents as to how the government acts as a proprietor of speech.94 The decision in Velasquez showcases, first, that Kennedy is maximalist on First Amendment issues; second, that his writing an opinion or joining the majority makes it more maximalist; and, third, in conjunction with Rosenberger, independent of partisan bias, Kennedy still acts to increase maximalism on First Amendment issues, serving as a strong example of the results from several aspects of the empirical analysis. Indeed, Rosenberger and Velasquez are key examples: despite Kennedy siding with different wings of the Court, his opinion serves as a more maximalist construction of the decision than other alternatives.

This empirical analysis is crucial for Citizens United because substantiating Kennedy’s maximalism and effect on the Court reinforces deeper analysis – that Kennedy influences the conservative wing, which happens specifically in the case of Citizens United. This is the cornerstone of the paper: using the analysis in the previous sections to construct a hypothesis that Kennedy increased maximalism in Citizens United due to his influence on the conservative wing and second, empirically substantiating Kennedy’s influence on the conservative wing.

93 Legal Services Corporation v. Velasquez, 531 U.S. (Feb. 28, 2001).

94 Eugene Volokh, The First Amendment and Related Statutes: Problems, Cases, and Policy Arguments, 3rd ed. (New York: Foundation Press, 2008), 454.

Kennedy’s Maximalism and its Influence on the Conservative Wing and Citizens United Kennedy represents the swing vote of the Court, so split ideological issues will often be decided by him. This means that Kennedy is one of the most influential justices on the Court, as his vote marks decisions going one way or another. While Kennedy certainly does influence the Court as its swing vote, his expansive decisions also provide an umbrella that more members of a certain wing can rally around, and, specifically, his maximalist flair in First Amendment issues allows members of the conservative bloc, with different perspectives on the First Amendment, to rally around a singular decision, encouraging more expansive outcomes. This influence can particularly be seen in Citizens United itself. 95

While then-Solicitor General and later Court Justice Elena Kagan presented the government’s arguments in the case of Citizens United in September 2009, the Court was hearing the argumentation for the second time, after an initial round of oral arguments in March of the same year. It is in this first round of argumentation that the influence Kennedy had on the decision is clear. After the first round of oral arguments, Chief Justice Roberts assigned himself the decision, and chose to decide on a statutory basis (on the basis of electioneering communications, as explicated in the second section of this paper). By deciding on the basis of statutory interpretation, Roberts fulfills both judicial restraint and constitutional avoidance doctrines: he avoids overturning recent and relevant precedents and he avoids setting new, landmark precedents when narrower decisions can apply. His opinion is, therefore, a clearly minimalist decision. However, when Kennedy circulated his own concurrence, the conservative

95 Tribe and Matz, Uncertain Justice, 129.

jurists rallied around Kennedy’s broad, expansive concurrence, which became the majority opinion after the second argumentation, as opposed to Robert’s narrow and shallow decision. This mimics the case of Rosenberger, and, indeed, the results of the empirical analysis, which showed that Kennedy’s opinions promote maximalism on the Court. Kennedy’s boldness in rejecting precedent to reject regulation on First Amendment issues, fitting with his ideological maximalism in that sphere specifically, is more appealing to the conservative plurality of the Court to the point that the jurists reject Robert’s cautious opinion as well as their consistently followed doctrine of minimalism, to created broad changes. 96 Thus, the conservative plurality rallies around Kennedy’s free speech maximalism, and thus chooses to rule broadly (Kennedy’s opinion) as opposed to narrowly (Roberts’ own opinion).97 Specifically, this broad opinion can be contrasted with the usual jurisprudence of the conservative majority, and, indeed, the intended jurisprudence of Citizens United itself. However, because the conservative wing was able to unify along Kennedy’s maximalist ideology in campaign finance, the wing chose not to pursue the minimalist doctrine, and instead chose to remove broad regulation.

However, this remains simply a theory, as the jurists could have been equally influenced by the benefits to causes of their own respective ideologies. Thus, the author will finally show that Kennedy himself influences the conservative wing. With the results of Trials 1 and 2, it is clear that Kennedy increases the maximalism of the majority in cases regardless of the issue area, and the modeling of these trials can be extended to, first, how Kennedy influences the conservative wing, and, second, whether those results can be attributed to Kennedy and not merely to ideological leanings.

96 Toobin, "Money Unlimited.”; Kimberley A. Strassel, The Intimidation Game: How the Left Is Silencing Free Speech (New York: Twelve, 2016), 89-92.

97 Toobin, "Money Unlimited.”

Empirical Analysis: Kennedy’s Maximalism and its Effect on the Conservative Wing

In order that all other influences were kept equal, the only cases present in this data set were cases in which either Kennedy sided with all four conservative jurists or Kennedy sided against the conservative wing. For example, a decision in which Kennedy, Alito, Breyer, Sotomayor, and Roberts in the majority and Ginsburg, Scalia, Thomas, and Kagan in the minority (i.e. Comptroller of the Treasury of Maryland v. Wynne) would not be included in this analysis, but a decision with Kennedy, Alito, Scalia, Roberts, Thomas, Kagan, Breyer, and Ginsburg on one side, and Sotomayor dissenting (Heien v. North Carolina), would be included. As such, these decisions encompass a smaller dataset than the previous trials, including only decisions made by the Roberts Court.

A new variable was designed to test how Kennedy influenced the full conservative bloc, and was thus termed ‘Unified Conservative Wing.’ If Kennedy sided with the conservative bloc, a score of 1 was given. If Kennedy sided against the conservative bloc, a score of 0 was given. Cases in which the conservative bloc was not unified (i.e. if Scalia and Roberts disagreed) were disregarded, as explained above, given no score, and not included in this trial. If Kennedy does increase maximalism on the conservative bloc, there should be a positive correlation between ‘Unified Conservative Wing’ and ‘minimalism score,’ as Kennedy siding with the conservative bloc, increasing the score for ‘Unified Conservative Wing,’ would increase the ‘minimalism score.’ Examining these 510 cases, ‘Unified Conservative Wing’ is strongly positively correlated with ‘Minimalism Score,’ with a p-value of 0.001. Furthermore, a second regression was performed in order to control for the factor of ideological direction, to ensure that direction did

not confound the results. The second regression resulted in a continued strong positive correlation, with significance value still at less than 0.001. For a tabular version of the regression as well as a brief summary of the results, see Appendix 2.

The strong positive correlation between ‘Unified Conservative Wing’ and ‘Minimalism Score’ provides substantive evidence that, when Kennedy joins the side of conservative wing, the maximalism of the side of the conservative wing increases, regardless of the ideological direction. That is to say, even if the decision has no ideological leanings, both sides of the decision support the same leaning, or the conservative wing sides with a liberal direction, Kennedy still uniquely increases the maximalism of the conservative wing when he joins them. In other words, the conservative wing’s departure from minimalism in cases favoring conservative ideologies can be attributed to Kennedy joining the wing rather than just conservative jurists supporting conservative causes. While this empirical analysis does not suggest that Kennedy is the sole influencer of the conservative wing, a theory that is both unlikely and would be difficult to prove, it does confirm the idea that Kennedy influences the conservative wing, and can be a more significant factor in an overall outcome than ideological influences. Because these empirics show that the conservative wing decreases their reliance on minimalist doctrine when Kennedy joins them, Kennedy’s choice to join the conservative wing in Citizens United provides an alternate cause of the majority’s maximalism in Citizens United, rather than the idea that this maximalism was caused solely by the conservative jurists supporting own ideologies.

Moving Forward: The Future of Citizens United and Similar Jurisprudence

Citizens United represents an aberration from the conventional judicial cases of the Roberts Court’s conservative wing, departing from both the trends of judicial restraint and

constitutional avoidance. The examination of the judicial writings of Justices Kennedy, Scalia, Thomas, Alito, and Roberts reveals that the conservative wing generally adheres to the minimalist doctrine, but is more likely to relinquish that doctrine when Justice Kennedy sides with them. Specifically, Kennedy’s maximalism in the First Amendment sphere provides an umbrella under which multiple interpretations and ideologies can coexist within a decision. A maximalist opinion written by Kennedy thus allows a broader consensus among the members of the conservative bloc, despite the differing opinions on free speech and campaign finance regulation held by individual members of the conservative bloc

This analysis is crucial as the decision in Citizens United has long-lasting impacts for jurisprudence as the Court continues. Primarily, the Supreme Court will increasingly block campaign finance regulation using Citizens United as a precedent, as it did in the 2012 case of American Tradition Partnership v. Bullock, when it ruled that Citizens United extended to local and state elections.98 Moreover, the doctrines espoused by the Court in Citizens United set precedents outside of campaign finance as well. The corruption test sets forth a new stringent definition that the government must pass to prove the legitimacy of a statute, and the idea of corporate personhood sets clear precedents not only in campaign finance, but to the broader realm of corporate activities.99 Regardless of how the minutiae of campaign finance laws and jurisprudence are altered by the decision, these two doctrines will endure and influence the Court, the prevalence of money in elections, and the broader government powers in corporate regulation even outside of campaign finance.

With a decision as monumental as Citizens United, it is important to clarify how the circumstances surrounding the case influence the outcome, which is what this paper seeks to

98 Brown, Pay-to-play Politics, 23.

99 Ibid, 27.

accomplish. Despite criticisms of the Roberts Court as being biased along partisan lines and ready to overrule precedent to favor ideological gains, this paper suggests that the Roberts Court, by and large, follows precedent and attempts to avoid constitutional questions. While this adherence to minimalism is in no way a concrete doctrine that every member of the Roberts Court follows in every decision, minimalism does play a role in influencing many of the members, especially of the conservative wing. The analysis presented in this paper reveals that the minimalist doctrine can be rejected by the members of the Court in the rare case that a maximalist opinion provides a broader consensus. While this is typically less likely, as a minimalist decision allows jurists to reach across ideological divides, cases already prejudiced towards a 5-4 split, like Citizens United or the aforementioned Rosenberger and Velasquez cases, can see greater consensus among the majority if the decision is broader, causing the majority to reject a more minimalist opinion. Not only does this paper provide the empirical substantiation that a justice such as Justice Kennedy can influence the Court in such a way, but it provides cases aside from Citizens United in which both blocs, liberal and conservative, have rallied towards a more maximalist decision authored by Justice Kennedy. Moreover, studying Court decisions through an empirical lens offers substantive evidence to confirm hypotheticals that arise from judicial writings and behaviors. In doing so, the statistical analysis of this paper provides a method to delve into judicial theory and answer questions regarding the nature of individual justices or the Court itself with empirical corroboration.

The massive arms race and the proxy wars of the Cold War drove the Soviet Union to near bankruptcy, and the Cold War ended once the militaristic Soviet Union could no longer simultaneously sustain its people, its satellites, and its army. However, the accelerating deregulation of campaign finance in the 21st century means that the money race between

American political parties shows few signs of ending. While there are differing perspectives on the value of money in politics, it cannot be denied that Citizens United created a torrent of spending from corporations and special interest groups. Understanding Citizens United and the reasoning behind it yields a deeper insight not only into how this influx of spending will continue, but also into the Court’s broader operating mechanisms in campaign finance jurisprudence and beyond. The maximalism innate in the decision, departing from a trend of minimalism, suggests that the Court will continue to oppose government regulation of money in politics, and, beyond just campaign finance, is predisposed against regulation of corporations in broader First Amendment issues.

Appendix 1: Methodology of Empirical Analysis

Dataset

The Supreme Court Database (hosted at the Washington University of Saint Louis Law School), which is used as a dataset in both Pickerill and Ward’s, as well as Anderson’s analysis, provides empirical data as to the votes and decisions made by individual justices. The most recent set of data was released in July of 2016, and includes term data from 1946-2015, and is downloadable as an excel file on http://scdb.wustl.edu/data.php. The database contains 60 variables, which are composed of 2,633 elements. These variables consist of background variables (i.e. origin of the case, respondent, reason for granting certiorari), substantive variables (essential components of the decision, including issue area, ideological direction of the decision, and the legal or constitutional authority for the decision), outcome variables (the result of the case, including winning parties, declarations of unconstitutionality, and alterations of precedent), and voting variables (direction of the individual vote, whether the justice sided with the majority or minority, whether the justice wrote an opinion). This paper used different groupings of data depending on the analysis performed. For analyses involving Kennedy specifically, the data set used represented all of his votes from the beginning of his tenure on the Court. For analyses on the overall conservative wing of the Roberts Court, data was used from the initial term of Alito to the final term of Scalia, ensuring that all four conservative jurists and Kennedy were accounted for.

Statistical Tools

Stata, a statistical software package which allows users to write commands, was used to analyze the data.100 These regressions analyze the correlation between two or more factors, and

100 Oscar Torres-Reyna, "Linear Regression Using Stata," Princeton University, last modified December 2007.

can be used to show a statistically significant (in effect, causative) relationship between multiple variables. Stata was useful as a user-friendly tool allowing variable input, facilitating the regressions performed and the processing of data.

Processing of Data & Creation of New Variables

In order to simplify regression, a ‘Minimalism Score’ variable was created. This variable gave a score quantifying the minimalism of a particular decision by combining three existing variables within the database – ‘Precedent Alteration,’ ‘Authority for Decision 1,’ and ‘Authority for Decision 2’ (this variable existed for the few cases which included a second authority for decision). ‘Precedent Alteration’ was normalized in the database, and the variable received a value of 0 if no precedent was altered, and 1 if a precedent was altered. The ‘Authority for Decision’ variables were created through an analysis of the reasoning which the Court used to reach its decision, and there were seven possible values for this variable: 1 for national judicial review, 2 for state judicial review, 3 for Supreme Court supervision of lower courts, 4 for statutory construction, 5 for the interpretation of an administrative (executive) action, 6 for diversity jurisdiction, and 7 for federal common law. In order to create an effective minimalist scoring variable for each decision, these variables needed to be re-normalized to code for minimalist and maximalist decision authorities, rather than the existing seven categories. In this analysis, the authorities were re-normalized between 0 and 1, where minimalist authorities were placed at 0 and maximalist authorities were placed at 1. Using Pickerill and Ward’s analysis for an explication of minimalism, the authorities were sorted as follows.101 First, statutory interpretation (originally a value of 4 in the database) and interpretation administrative action (originally a value of 5): statutory interpretation entails avoiding constitutional review of a

101 Pickerill and Ward, “Measuring Judicial”, 15-17

statute and preferring to explicate the statute by providing alternative, constitutional interpretations of that statute. Similarly, interpretation of executive action explains the action on the basis of constitutional alternatives. As such, statutory and administrative interpretations allow the Court to uphold statutes by providing alternative interpretations which are constitutional, thus allowing the Court to avoid broad constitutional questions. Indeed, statutory interpretation is the mechanism for constitutional avoidance, and is thus a core part of the minimalist doctrine. Thus, cases that had been assigned a value in the database of 4 or 5 for the authority for decision variable were normalized to 0 in this paper. Second, federal common law (originally a value of 7 in the database): federal common law, as described by the database, is the citation of past Court precedents, and, essentially, the default setting for the Court. Because this category means relying on past precedent, it represents judicial restraint, where precedent is not altered and is instead utilized as a reason for upholding or striking a law. Thus, cases that had received a value of 7 were given a new value of 0. Third, judicial review (originally a value of 1 for federal judicial review and 2 for state judicial review): these decisions were decided both broadly and constitutionally, setting new precedents and involving the alteration of past precedents. Because these decisions are maximalist, setting aside both restraint and avoidance doctrines, cases which had received a value of 1 or 2 in the database received a value of 1 in this paper. Fourth, diversity jurisdiction (database value of 5) and Supreme Court supervision (database value of 3): these decisions are neither maximalist nor minimalist. Supreme Court supervision, which is either original jurisdiction or Court priority over lower courts, is not in and of itself maximalist or minimalist. Diversity jurisdiction occurs when there is a complete diversity of citizenship between two parties – i.e. a U.S. citizen vs. a non-resident alien. As such, this authority for decision is similarly not maximalist or minimalist by nature. Thus, both of these authorities were

assigned a value of 0.5 – neither maximalist, nor minimalist. The full minimalism score was computed by adding the values of ‘Precedent Alteration,’ ‘Authority for Decision 1,’ and, in the cases where it was present, ‘Authority for Decision 2.’ As the greatest possible score for each variable is 1, where 1 is least minimalist and most maximalist. As such, the greatest possible score for the variable is 3, which would mean that the decision received a 1 in each component variable. In this variable, a higher minimalism score means that the decision is more maximalist; a lower score means that the decision is more minimalist. The creation of the minimalism score variable was necessary, as it ensured that factor variables could be regressed against an overall minimalism score instead of against variables for constitutional avoidance and for judicial restraint.

Measuring Success

The p-values of the individual regressions were used as tests of significance. When pvalues are 0.05 or under, the regression is considered statistically significant.102 Essentially, that means that there is strong evidence reinforcing the results of that regression and rejecting the contrary of the proposed relationship. For example, if there is a positive correlation between two variables, and a p-value of 0.05 or lower is generated for that regression, then the two variables are strongly linked. This is the bar that was set by the author prior to conducting the trials.

102 Torres-Reyna, "Linear Regression," Princeton University.

Main

Appendix 2: Table and Summary of Regression Results

1. Majority Issue Area

2. Opinion Issue Area

3. Issue Area

4. Majority (First Amendment Cases) Issue Area

5. Unified Conservative Wing Ideological

Fig. 1: Table of Results: This table shows the results of the 5 regression trials, in which a main explanatory factor was regressed against the minimalism score variable. The regressions conducted measured the correlation between the main factor and the minimalism score, while variables (the issue area of the court case and the ideological direction of the vote) that could otherwise influence the result were held constant. The first trial measured how Justice Kennedy joining the majority affected maximalism, the second trial measured how Justice Kennedy writing the opinion affected maximalism, the third trial measured how the issue area affected the maximalism of Kennedy’s vote, and the fourth trial measured how Justice Kennedy joining the majority affected maximalism on First Amendment cases, specifically. All of these four trials showed a positive correlation (meaning that the main factor increased maximalism) with high levels of significance. The final trial measured how Justice Kennedy joining the conservative wing, specifically, affected maximalism regardless of the ideological direction of the case, and found that Justice Kennedy joining the conservative wing was strongly associated with an increase in maximalism.

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Rosenberger v. University of Virginia, 515 U.S. (June 29, 1995). https://www.law.cornell.edu/supct/html/94-329.ZC.html.

Scalia, Antonin. "Originalism: The Lesser Evil." University of Cincinnati. Last modified September 16, 1988. https://www.law.uc.edu/sites/default/files/Scalia%201988%20Taft%20Lecture.pdf. Supreme Court Justice Antonin Scalia, in this lecture at the University of Cincinnati, describes originalism as a form of constitutional interpretation. Scalia describes both the overarching philosophy of originalism as well as how originalism has developed throughout the Supreme Court. Specifically, Scalia argues in favor of a reduced role of the judiciary here, noting that the legislature generally serves to better explain the will of the people and thus to create broader social change. Scalia rejects the idea that the Court should act to create broad social change then, arguing that is for the legislature, and concludes that originalist philosophy encourages justices to do that. This source provides a deep insight into Scalia’s originalist philosophy, but strongly substantiates, in accordance with Scalia’s other writings, the idea that Scalia supports the doctrine of constitutional avoidance, as Scalia argues against the Court setting broad changes and instead argues for the Court to discuss the law itself, resolving questions through statutory instead of constitutional interpretations.

Shapiro, Ilya. "“Libertarianism Has Won Over the Supreme Court Conservatives”." The CATO Institute. Last modified July 30, 2013. https://www.cato.org/blog/libertarianism-has-wonover-supreme-court-conservatives.

Ilya Shapiro, fellow in constitutional studies at the libertarian CATO Institute, describes the growing trend of libertarianism in the Court in relation to Simon Lazarus’ article on libertarianism. Specifically, however, Shapiro takes a different approach to Lazarus arguing that true libertarianism is not fully represented on the Court, and, instead, that a weaker form of libertarianism is present on the Court. Shapiro thus argues that, admittedly, disapproval of federal regulation and overreach has increased on the Court, but not to the level that constitutes true libertarianism. While Shapiro is clearly staunchly libertarian, this piece is important as a libertarian’s perspective on the perceived

libertarianism of the Court. Although Shapiro does disagree with the strength of the movement on the Court, he concedes to Lazarus’ argument that libertarian principles have slightly influenced the Court’s judicial writings. This is important because, while both Shapiro and Lazarus have sharply differing viewpoints on the responsibility of the court and on politics itself (with Lazarus representing a more pro-regulation approach), both agree that libertarian principles have influenced the Court to a certain degree.

Siegel, Neil S. "The Distinctive Role of Justice Samuel Alito: From a Politics of Restoration to a Politics of Dissent." Yale Law Journal. Last modified OCtober 18, 2016. http://www.yalelawjournal.org/forum/the-distinctive-role-of-justice-samuel-alito.

Neil Siegel, a professor of Law and a professor of political science at the Duke Law School, describes the jurisprudence of Justice Alito during his time on the Court by analyzing Alito’s significant and less known writings. Specifically, Siegel analyzes Alito’s writings on free-speech and note that, in the specific area of free speech laws, Alito generally favors the government’s interpretation and relies on past precedent, arguing for the government having a compelling interest in restricting certain types of free-speech. Siegel explains the contradiction, thus, when Alito joins fellow jurists in overturning regulation on campaign finance, noting that this contradicts Alito’s held judicial doctrines as well as Alito’s ideas on judicial restraint as it applies to free speech. Siegel concludes simply that Alito’s campaign finance decisions are clearly at odds with his regular opinions, which are influenced by Alito’s conceptions on speech as well as his strict adherence to restraint doctrines.

Snyder v. Phelps, 562 U.S. (2011). https://www.law.cornell.edu/supct/html/09-751.ZS.html.

"Speechnow.org v. FEC." Federal Election Commission. http://www.fec.gov/law/litigation/speechnow.shtml.

Sullivan, Kathleen M. “Free Speech and ‘Hillary: The Movie’: A Wiser Middle Course.” The New York Times, September 9, 2009. https://roomfordebate.blogs.nytimes.com/2009/09/08/free-speech-and-hillary-the-movie/.

Kathleen Sullivan is a former professor at Harvard and Stanford’s Law Schools, and was the dean of Stanford Law for five years. Sullivan is also a successful constitutional lawyer, arguing 9 times before the U.S. Supreme Court and many more before the Circuit Court of Appeals and the California Supreme Court. In this article for the New York Times, Sullivan explains the legal circumstances surrounding Citizens United v. FEC, and the possibility of a narrower alternative to the extreme constructions by both the government and the petitioner in the original oral arguments. Sullivan describes the Snowe-Jeffords Amendment and analyzes its viability as a statutory interpretation of the BCRA that would serve as a compromise between the two sides.

Strassel, Kimberley A. The Intimidation Game: How the Left Is Silencing Free Speech. New York: Twelve, 2016.

Kimberly Strassel, conservative journalist and frequent contributor the the Wall Street Journalist, analyzes the partisan divide over free speech rules in her book. Specifically in terms of campaign finance, Strassel argues that the Bipartisan Campaign Reform Act was

‘dirty politics’ on the part of the Democrats to remove a significant amount of Republican campaign funding by implementing overly regulatory hard money contributions. Strassel’s narrative is critical not as an objective viewpoint, but as an example of a partisan narrative and the Republican’s perspective on the BCRA that showcases the partisan split over campaign finance regulation.

Stone, Geoffrey R. "The Roberts Court, Stare Decisis, and the Future of Constitutional Law." Tulane Law Review. Last modified 2008. http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2723&context=journal_ articles.

Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor at the University of Chicago as well as a former clerk for Justice Brennan, describes in this article the principle of stare decisis and how the Roberts Court adheres to it. Stone argues that Roberts and his fellow justices on the Supreme Court largely promise to adhere to the doctrine of stare decisis, but ignore it in key circumstances. Stone argues that conservative activism on the Court has increased in certain spheres, specifically campaign finance, and the conservative wing of the Court has been less likely to follow essential doctrines in the realm of campaign finance. Stone concludes that while Roberts generally adheres to judicial restraint, he has become more activist in the realm of campaign finance.

Sunstein, Cass R. One Case at a Time: Judicial Minimalism on the Supreme Court. Cambridge, Mass.: Harvard University Press, 2001. https://books.google.com/books?isbn=0674005791.

Cass Sunstein is the Robert Walmsley University Professor at Harvard Law School, formerly teaching for 27 years at the University of Chicago Law School, and a specialist in constitutional theory. Sunstein is a noted legal scholar as well as the most frequently cited American legal scholar, and is a proponent of the theory of judicial minimalism. Indeed, Sunstein is most closely associated with the theory of judicial minimalism, having effectively coined the term in his books. In this book, Sunstein sets forth the theory of minimalism, and describes it as a doctrine of avoidance and restraint, where decisions are both shallow and narrow. Sunstein notes that preventing broad rulings has ensured flexibility for the political process while protecting rights, fostered public debate on important issues, and ensures proper regulation.

Thompson, Joel A., and Gary F. Moncrief. Campaign Finance in State Legislative Elections Washington, DC: Congressional Quarterly, 1998.

Joel Thompson and Gary Moncrief, professors of political science at Appalachian State University and Boise State University, respectively, describe the changing landscape of American politics in state and legislative elections due to an influx of campaign contributions. Through a comprehensive data collection of 18 states and over 6 years of electoral data (1986-1992, with certain states including 1992-1994 as well), Thompson and Moncrief analyze how increasing campaign contributions have affected the perception of corruption in elections, the balance of power between parties, and the ability of minorities to succeed. Thompson and Moncrief conclude that, while innate advantages, such as the incumbency advantage, already exist in many races, PAC funding

and campaign contributions shored up those advantages, and that states with limits on contributions saw weaker incumbency advantages.

Toobin, Jeffrey. "Money Unlimited." The New Yorker, May 21, 2012. http://www.newyorker.com/magazine/2012/05/21/money-unlimited.

Jeffrey Toobin, a legal analyst and journalist for CNN and the New Yorker, describes the workings of the Citizens United decision itself. Toobin discusses the oral arguments in the initial argument of Citizens United to examine how the conservative wing of the Court chose to hear re-arguments of the case to allow a broader decision than the original statutory decision intended. Toobin compares the original opinion by Roberts to the eventual opinion by Kennedy, and highlights the libertarian ideology behind Kennedy’s opinion (and his earlier concurrence on the first Citizens United case).

Torres-Reyna, Oscar. "Linear Regression Using Stata." Princeton University. Last modified December 2007. https://www.princeton.edu/~otorres/Regression101.pdf.

Oscar Torres-Reyna is a former Professor in Public Policy and Economics at the University of Guadalajara and currently serves as a data and statistics consultant at Princeton University. Torres-Reyna, an expert in political science and statistical analysis, describes in this work the statistical software tool Stata, as it relates to statistical analysis, and describes how to operate Stata and run multivariate regressions in the software.

Tribe, Laurence H., and Joshua Matz. Uncertain Justice: The Roberts Court and the Constitution. New York: Henry Holt and Company, 2014.

Laurence Tribe, professor of Constitutional Law at Harvard Law School, and Joshua Matz, Harvard Law graduate and clerk for Anthony Kennedy, analyze the jurisprudence of the Roberts Court over time. Noting how the Roberts Court generally follows a principle of constitutional avoidance, Tribe and Matz highlight specific cases in which cases were not decided under that principle. Specifically, the authors spend a chapter on Citizens United v. FEC and examine the ideology behind the justices’ call to reargue and eventually decide Citizens United.

"The Federal Election Campaign Laws: A Short History." Federal Election Commission. Accessed May 23, 2016. http://www.fec.gov/info/appfour.htm.

In this source, the Federal Election Commission provides an overview of campaign finance through American history. This source provides detailed background on the structure of campaign finance regulation, and efficiently describes the effects that different legislation and court cases have had on the structure of regulation. The Federal Election Commission, the agency designed to protect the election system, is one of the most knowledgeable sources on this topic, and provides great background information on the case.

Vogel, Kenneth P. Big Money: 2.5 Billion Dollars, One Suspicious Vehicle, and a Pimp-on the Trail of the Ultra-rich Hijacking American Politics. New York: PublicAffairs, 2014. Kenneth Vogel, chief investigative reporter at Politico, investigates the effect of billionaires on electoral spending. Vogel describes, first, how billionaires, specifically the Koch Brothers, bolstered Citizens United and, second, how billionaires then used the case

to widen existing loopholes within the system. Vogel’s novel highlights the partisan nature of support for Citizens United and underlying legal precedents leading up to Citizens United

"U.S. Supreme Court Justice Samuel Alito Says Pragmatism, Stability Should Guide Court." Columbia Law School. Last modified April 24, 2012. https://www.law.columbia.edu/media_inquiries/news_events/2012/april2012/justicealito-burke-conference.

This press release by the Columbia Law School describes a conference on Edmund Burke’s interpretation of the Constitution during which Justice Alito spoke. Specifically, Alito explains his judicial philosophy, as well as its relation to Burkean constitutionalism, during this lecture, and Alito highlights the importance of precedent by arguing that rules established over time should be far more respected. Alito argues directly for strict adherence to precedent in order to both minimize judicial bias and fanciful interpretations of the Constitution that act too broadly. Here, Alito’s philosophy is clearly explicated and backed up by his Court writings. Alito thus holds the restraint doctrine as strictly important, as seen in his other writings, and argues that deviations from the doctrine in order to set broader precedents that don’t follow established precedents are dangerous to the stability of the Court and the stability of the law.

United States v. Windsor, 570 U.S. (2013). https://www.law.cornell.edu/supct/cert/12-307.

Volokh, Eugene. The First Amendment and Related Statutes: Problems, Cases, and Policy Arguments. 3rd ed. New York: Foundation Press, 2008.

Eugene Volokh is the Gary T. Schwartz Professor of Law at the University of California, Los Angeles School of Law. Volokh’s book, a casebook on the First Amendment, covers various First Amendment cases and government regulation or legislation surrounding important cases and issues. In this book, Volokh highlights precedents which important cases set, and analyzes the dynamic of First Amendment cases and the trends over time in the Court.

Wallison, Peter J., and Joel M. Gora. Better Parties, Better Government: A Realistic Program for Campaign Finance Reform. Washington, DC: AEI Press, 2009.

Peter Wallison, of the American Enterprise Institute, and Joel Gora, constitutional law professor at the Brooklyn Law School, describe the growth of campaign finance reform and corruption in politics in an analysis of campaign finance regulations from 1971. Specifically, the book describes that campaign finance regulations largely cause higher rates of incumbency rather than increasing actual competition within the system, and they conclude that restrictions on political parties should be removed in order to promote greater amounts of competition and reduce incumbency within the system.

"Why American's Aren't Stirred by Campaign Finance Reform." Pew Research Center. Last modified March 27, 2001. http://www.people-press.org/2001/03/27/why-americansarent-stirred-by-campaign-finance-reform/.

This article by the Pew Research Center covers two polls, one by Gallup and the other a joint poll by Time Magazine and CNN, and highlights the apathy towards campaign

finance reform among most Americans. This article highlights concern over weak campaign finance reform, but both a distrust of government to promote effective legislation and the lack of significance which those surveyed attributed to campaign finance.

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