Gavel Grab

Retired Supreme Court Justice John Paul Stevens says that President Obama was right when he leveled a challenge two years ago to the Supreme Court’s Citizens United decision. Obama made his remark in a State of the Union speech, with justices in attendance.

“In that succinct comment, the former professor of constitutional law at the University of Chicago made three important and accurate observations about the Supreme Court majority’s opinion,” Justice Stevens said in a speech on Wednesday in Little Rock, Arkansas, according to a Los Angeles Times article.

“First, it did reverse a century of law; second, it did authorize unlimited election-related expenditures by America’s most powerful interests; and, third, the logic of the opinion extends to money spent by foreign entities.”

Justice Stevens, who dissented in the 5-4 Citizens United decision, said the court “has already begun paring the scope of that decision, and predicted that it very likely will do so further in future cases,” Lyle Denniston wrote in SCOTUSblog.

At a New York Times blog, Adam Liptak wrote that Justice Stevens accused his former colleagues “of inconsistency, if not incoherence, in their rulings in the aftermath of Citizens United.”

After Obama had criticized members of the Supreme Court to their faces, Bert Brandenburg, executive director of Justice at Stake, raised questions in a Gavel Grab commentary about when criticism of the court may cross over the line.

“The ultimate fear,” Brandenburg said, “is that red-meat rhetoric can soften the legitimacy of the judiciary, by egging on political supporters at the expense of respect for the role of courts in our system of checks and balances. Even the most frustrated president knows that America’s freedoms have been strengthened by the reservoir of legitimacy that our courts need in order to uphold the rule of law.”

Justice Stevens delivered his speech this week as the Supreme Court prepares to weigh on June 14 whether to take up a Montana case, considered  by some a sequel to Citizens United. Justice at Stake and eight retired Montana Supreme court justices have filed a friend-of-the-court brief in that case.

A Roll Call article discusses that case and asks whether the strategy adopted by some reform groups may be risky. Meanwhile, election law expert Rick Hasen asked in his Election Law blog, “What is Justice Stevens up to? … The speech certainly increases the public salience of the Montana case, and in this way, Justice Stevens, like Justice [Ruth Bader] Ginsburg, speaks truth to power.”