Author Box
Articles Categories
All Categories
Articles Resources

The End Of 'Stare Decisis'

February 27, 2012 | Comments: 0 | Views: 144

It's time to be realistic about the relationship between the U.S. Supreme Court and the Constitution. That relationship has two elements:

First, the Constitution means whatever the Supreme Court says it means.

Second, the Supreme Court is free to change its mind whenever it wants.

You may find it disturbing that the supreme law of the land is, at any given time, unknowable to the roughly 310 million of us who are bound by it, and that so much power is wielded collectively by nine individuals who hold their jobs for life. There are good reasons to be disturbed. But there is no point in ignoring facts just because facing those facts is uncomfortable.

Justices have always paid homage to the principle of "stare decisis," which holds that once the courts have settled a precedent, other courts of equal or lesser authority should make every effort to follow that precedent. Stare decisis has become almost a household phrase in the past several decades as the Supreme Court's membership has become politicized and polarized.

Since Roe v. Wade legalized abortion nationwide in 1973, and especially since abortion opponent Ronald Reagan became president in 1981, stare decisis has been a coded test: candidates for the high court pledge allegiance to the principle as a way to convince skeptics that they have not made up their minds in advance whether Roe should be overturned, even though anyone even remotely viable as a candidate for the job has already formed a strong opinion one way or the other.

No recent nominee to the high court could have won Senate confirmation without acknowledging stare decisis. As the court has become more aligned with conservative politics, liberals have placed greater emphasis on stare decisis as a bulwark against reversing many of the principles they hold dear, starting with Roe but extending to many other matters, including affirmative action and the scope of government power to regulate everything from health care to gun ownership.

Now the liberals, too, have effectively abandoned stare decisis. Last week, Justices Ruth Bader Ginsburg and Stephen Breyer called for the court to revisit its decision in Citizens United v. Federal Election Commission, just two years after the court decided in that case that corporations and labor unions have a First Amendment right to spend their own money on political advertising.

The Montana Supreme Court disregarded Citizens United in a recent case known as American Tradition Partnership v. Attorney General for the State of Montana, ruling 5-2 that Montana has a "unique and compelling interest" in regulating corporate spending in political campaigns. (1) Ginsburg and Breyer voted with the other justices to stay the Montana court's decision, but they appended a strongly worded call for the high court to reconsider its Citizens United holding.

"Montana's experience, and experience elsewhere since this court's decision in Citizens United v. FEC makes it exceedingly difficult to maintain that independent expenditures by corporations 'do not give rise to corruption or the appearance of corruption'," wrote the two justices, both of whom dissented in the original 5-4 Citizens United holding. (2) All five justices who formed that majority remain on the court.

The Constitution also remains as it was when Citizens United was decided. And although corporations have been free for two years to spend their money independently of the candidates they support, and some have spent money freely, it is hard to know just what "experience" in Montana and elsewhere has shown that such spending gives rise to corruption in appearance or in fact. I have not heard of any candidate or officeholder being charged with having taken or promised an official act in return for such expenditures.

Not that it matters. The Citizens United majority found that the constitutional protection of freedom of speech applies to all speech, including speech by corporations. Critics of the decision argue that such protections should apply only to natural persons, but that is not what the First Amendment says. In calling for reconsideration, Ginsburg and Breyer are really just saying that they lost the first contest and they would like a rematch. That is exactly what the concept of stare decisis should prevent.

The conservative bloc on the high court does not conduct itself very differently. It has also felt free in many cases, including Citizens United itself, to reverse or half-heartedly distinguish earlier precedents when it thinks such precedents were wrongly decided.

So I'll join the party here, and amend my earlier statement. The Constitution does not mean whatever nine Supreme Court justices tell us it means. It means whatever five justices tell us it means. The other four justices can only wait, like the rest of us, for someone on the current majority to change position or leave the court.

Yes, it's disturbing, but it is what it is. Modern justices, rightly or wrongly, do not have the requisite respect for their predecessors to make precedent anything more than a matter of judicial convenience. They think they can invent a better constitutional wheel. The rest of America is in no position to argue.

Sources: 1) Bloomberg, "High Court Halts Montana Corporate Funds Ban" 2) ABC News, "Will Supreme Court Reconsider Citizens United? Two Justices Hope So"

For more articles, please visit the Palisades Hudson Financial Group LLC newsletter or subscribe to the blog.



Source: EzineArticles
Was this Helpful ?

Rate this Article

Article Tags:



Ruth Bader Ginsburg


Stare Decisis


Stephen Breyer


The U S Supreme Court


U S Constitution

Teenage rebellion is easier to tolerate in book or film form. Take a look back at some of the most well known and loved "coming of age" stories set in boarding schools.

By: Harvey McEwan l Arts & Entertainment l July 10, 2012 lViews: 445

An important thing you have to consider before working out is having a pair of great training shoes. You cannot immediately undergo any physical training wearing inappropriate footwear. If you do so,

By: Steve Hill l Recreation & Sports l July 10, 2012 lViews: 349

Granite is one natural stone that is used for several purposes from dimension stone to countertops to sculptures. The use of granite for building the temples and monuments was initiated millions

By: Steve L Patterson l Arts & Entertainment l July 10, 2012 lViews: 298

Up to 65,000 H-1B visas for new employment may be issued each fiscal year (FY) for professional workers, including medical providers. In general, a person who already has an H-1B and applies for

By: Ann Badmus l Arts & Entertainment l July 10, 2012 lViews: 308

Beside coin shooting, gold detecting or the many other things you can do with your metal detector. There is a large group of people who take their metal detector out looking for old stuff. Not just

By: Candy L Lindsey l Recreation & Sports l July 07, 2012 lViews: 293

Many people want to be writers and you may be one of them. In order to make your dream occupation a reality, you need to have a plan. You also need to work on this plan constantly. These tips from a

By: Harriet Hodgson l Writing & Speaking l July 06, 2012 lViews: 439

A divorce attorney is responsible for navigating the process of dissolving a marriage partnership. This attorney will work hard to get their clients an out of court settlement for the division of

By: Antoinette Ayanal Legall June 15, 2012 lViews: 203

Any given law office will usually have a specific subspecialty that they help their clients with in the legal profession. During these tough financial times, law offices have sprouted up or began to

By: Abraham Avotinal Legall June 15, 2012 lViews: 208

This article explores the possible suggestions a bankruptcy attorney might give to his client. It explains the more common options.

By: Abraham Avotinal Legall June 15, 2012 lViews: 208

Not everyone has the ability to be a family attorney. Many would like to be one, but it's a challenging path.

By: Abraham Avotinal Legall June 14, 2012 lViews: 161

Making plans to deal with your estate or trusts while you're still able is a step in the right direction. That's why you need to work with a wills attorney in order to help guide you through the

By: Andrew Strattonl Legall June 14, 2012 lViews: 159

Anyone who has ever watched syndicated talk shows knows that it is a cinch to get a DNA test. Here are some of the common questions about the process.

By: Abraham Avotinal Legall June 14, 2012 lViews: 177

Bipartisanship isn't always sweet. Especially when it comes to the politics of sugar.

By: Larry M. Elkinl News & Society > Politicsl July 09, 2012 lViews: 237

Cashless tolling speeds drivers on their way. The big hitch is when rental car customers get an after-the-fact surprise.

By: Larry M. Elkinl Travel & Leisure > Car Rentalsl June 11, 2012 lViews: 180

New Yorkers seem to like their decades-old housing "emergency." The courts are likely to let them keep it.

By: Larry M. Elkinl Legal > Real Estate Lawl May 18, 2012 lViews: 177

Europeans, sick of their economic ills, try for a political second opinion. Will Americans do the same in November?

By: Larry M. Elkinl News & Society > Internationall May 11, 2012 lViews: 172

Sen. Marco Rubio's revised version of the Dream Act could improve GOP prospects with Hispanics. It's also good legislation.

By: Larry M. Elkinl News & Society > Politicsl April 26, 2012 lViews: 194

The economy suffers when banks concentrate on collecting fees rather than deposits. And on making trades rather than loans.

By: Larry M. Elkinl News & Society > Economicsl April 24, 2012 lViews: 208