Opinion: Sotomayor’s first words in first Supreme Court argument
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The case involved Hillary Clinton (the movie), the future of campaign finance reform and the sanctity of the 1st Amendment guarantee of free speech. Just the usual fodder for a Supreme Court tasked with being the last appeal for all causes, from all corners.
There were a few firsts.
Elena Kagan made her first argument at the high court as solicitor general, presenting the government’s case that the movie was a campaign ad and therefore subject to regulation by the nation’s campaign finance laws.
She was facing off against a former solicitor general, Theodore Olson, who was arguing that those laws violate the 1st Amendment rights of corporations and unions by banning them from political speech. ‘Why is it easier to dance naked, burn a flag or wear a T-shirt profanely opposing the draft,’ Olson said in July at the conservative Federalist Society, ‘than it is to advocate the election or defeat of a president? That cannot be right.’
The case is so pivotal -- and so potentially tumultuous to decades of campaign finance law -- that the justices returned from their summer recess three weeks early to hear arguments.
And the case could be decided by two justices appointed by George W. Bush -- Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. -- who may have to choose between personal views and court precedents.
But no matter all of that.
Sonia Sotomayor, the first Latina justice and the first high court appointment by President Obama, spoke her first words. And the world took note.
By all accounts, she jumped right into questioning. She appeared skeptical of arguments by Citizens United that the conservative group’s 90-minute campaign-era movie about Clinton (‘Not a musical comedy,’ observed Justice Stephen Breyer) was protected speech. And she questioned Olson about why he had abandoned a former argument -- that Citizens United was not really a corporation -- for a more sweeping one, that campaign funding restrictions discriminate against corporations.
Upbraided by several Republican senators during her confirmation hearings about the importance of respecting court precedents, she asked Olson why he seemed so intent on toppling it in this case. Her first words:
Mr. Olson, are you giving up on your earlier arguments that there are ways to avoid the constitutional question to resolve this case? I know that we asked for further briefing on this particular issue of overturning two of our Court’s precedents. But are you giving up on your earlier arguments that there are statutory interpretations that would avoid the constitutional question?
His answer: No.
-- Johanna Neuman
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