Justice Stevens continues speaking out on Supreme Court decisions with which he disagrees (and in which he was in the minority). Last week, as we reported here, it was Bush v. Gore. Yesterday, in this speech, it was Citizens United. What's most interesting about Justice Stevens' speech is how it began: with the controversial portion of President Obama's 2010 State of the Union speech condemning the Citizens United decision:
On January 27, 2010, in his State of the Union address, President Obama declared: "With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests-including foreign corporations-to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."
Justice Stevens then immediately agreed with President Obama on all scores:
In that succinct comment, the former professor of constitutional law at the University of Chicago Law School made three important and accurate observations about the Supreme Court majority's opinion in Citizens United v. Federal Election Commission: 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.
Recall that at the State of the Union address Justice Alito appears to have mouthed the words "not true" in response to President Obama's characterization of the Court's decision. I had assumed that Justice Alito was responding specifically to the claim that the decision "reversed a century of law." But Justice Stevens believes that Justice Alito was reacting to the President's claim that the decision's logic extends to money spent by foreign entities. That understanding of Justice Alito's views, in turn, has led Justice Stevens to conclude that the Court will in a future case hold that Citizens United does not extend that far (and, therefore, Justice Stevens says, hold that the identity of the speaker matters, at least to some degree, in determining the permissible basis for regulating campaign speech).