A couple of weeks ago, Ben Smith pointed to a law review article by reputed Obama Supreme Court short-lister Kathleen Sullivan that described Citizens United as an "unjustly maligned" decision:
Citizens United has been unjustly maligned as radically departing from settled free speech tradition. In fact, the clashing opinions in the case simply illustrate that free speech tradition has different strands. The libertarian strand from which the majority draws support emphasizes that freedom of speech is a negative command that protects a system of speech, not individual speakers, and thus invalidates government interference with the background system of expression no matter whether a speaker is individual or collective, for-profit or nonprofit, powerful or marginal. The egalitarian strand on which the dissent relies, in contrast, views speech rights as belonging to individual speakers and speech restrictions as subject to a one-way ratchet: impermissible when they create or entrench the subordination of political or cultural minorities, but permissible when aimed at redistributing speaking power to reduce some speakers’ disproportionate influence.
Smith wrote:
You've got to think Stanford's Kathleen Sullivan pretty much took herself off a future short list for the Supreme Court with a Harvard Law Review article that concludes like this[.]Smith calls this "taking herself off a future short list." I call it "ensuring a smooth Senate confirmation hearing."
