2010/01/21

Revelations in Citizens United Decision

Much is revealed in this quote of J. Roberts in the decision announced Jan. 20, 2010, in Citizens United (joined by Alito).
"To the extent that the Government’s case for reaffirming Austin depends on radically reconceptualizing its reasoning, that argument is at odds with itself. Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.

Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court’s past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect."
I have highlighted the references to "past mistakes", which is an acknowledgment that the Court has made mistakes in its decisions, and may have maintained it is more important to continue those past mistakes than to correct them. That is logically incompatible with the oath judges take to uphold the Constitution, and grounds for impeachment and removal.

Although Roberts is indicating that there are other mistakes that previous courts have been following contrary to original understanding of the Constitution, he is unwilling to throw open that door widely. He is as least backing off on stare decisis a little, by suggesting in essence that precedents be treated as persuasive rather than binding. That is a position that previously only Justice Thomas has been willing to put forward. That Roberts and a majority are now willing to deprecate binding stare decisis is a huge milestone, but it only points the way to a lot of unfinished business as other precedents are re-examined. That door is now open a crack, for the first time in modern judicial history.

One of the fundamental principles of the Constitution is the right to a presumption of nonauthority. Authority must always be proved from the Constitution and its historical background, not just from the most recent precedent. Generally, precedents supporting a right are correct, and most of those that support a power are not.

See this spreadsheet containing wrong precedents that remain to be corrected.

Links on Legal Theory Blog:
http://lsolum.typepad.com/legaltheory/2010/01/citizens-united-decided-major-changes-in-campaign-finace-laws.html

This decision essentially means campaigns can now accept donations from corporations.

See How Stare Decisis Subverts the Law.

See my Draft Amendments that include an amendment to forbid such use of stare decisis.

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