Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them.
The role of an umpire and a judge is critical. They make sure everybody plays by the rules.
But it is a limited role. Nobody ever went to a ball game to see the umpire.
- Judge John Roberts, September 12, 2005
It seemed like a good analogy. The press sung his praises upon his unveiling of this apropos and wise analogy. It was smiles all around.
But there were also the naysayers. There were those that think many members of the Federalist Society say what they think others want to hear, yet when afforded an opportunity, do something else more in line with their agenda. At the time, these warnings were downplayed as the same old partisan bickering we hear over and over again when nominations are made to the United States Supreme Court.
He said a number of other very attractive things as he testified over the next several days. As reported by CNN:
[Roberts] acknowledged that upholding past cases ensured “predictability, stability and legitimacy.”
Later in the hearing, Roberts told Sen. Dianne Feinstein, D-California, he would judge any challenge to Roe according to the principle of stare decisis, latin for “stand by a decision,” meaning courts are bound by previous decisions, or precedent.
Once issues are “settled,” the idea is to prevent ongoing confusion and litigation over the meaning and impact of past cases — except in extraordinary cases.
When Roberts was questioned by Senator Arlen Spector, the following exchange occured:
Spector: And I begin collaterally with the issue of stare decisis and the issue of precedence.
Black’s Law Dictionary defines stare decisis as, Let the decision stand, to adhere to precedence and not unsettle things which are established.
Justice Scalia articulated, quote, The principal purpose of stare decisis is to protect reliance interest and further stability in the law. Justice Frankfurter articulated the principle, quote,
We recognize that stare decisis embodies an important social policy that represents an element of continuity in law and is rooted in the psychological need to satisfy reasonable expectations.
Justice Cardozo, in a similar vein, quote, No judicial system could do society’s work if each issue had to be decided afresh in every case which raised it.
In our initial conversation, you talked about the stability and humility in the law.
Would you agree with those articulations of the principles of stare decisis, as you had contemplated them, as you said you looked for stability in the law?
Roberts: Yes, Mr. Chairman, I would. I would point out that the principle goes back even farther than Cardozo and Frankfurter. Hamilton, in Federalist No. 78, said that, To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents.
So, even that far back, the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability, adherence of integrity in the judicial process.
Clearly, on the basis of Roberts’ testimony under oath before Congress, one could only conclude that he was firmly committed to upholding legal precedent for a great number of reasons, all of which are historically and substantively rooted in the longstanding jurisprudence of the United States of America, of which he is well aware and conversant.
This week, however, we learned the Chief Justice of the United States Supreme Court is no umpire. We learned that he is, in fact, a liar. Turns out he really was the wolf in sheep’s clothing that many claimed he would be. We now know that when he charmed everyone with his baseball analogy, he neither believed in it, nor did he intend to conduct himself in accordance with the principle he used it to illustrate.
In Citizens United vs. FEC, a Supreme Court opinion released just last week, Roberts sided with a majority of conservative justices that tossed aside a century of legal precedent to allow for-profit corporations to donate directly to political candidates. This is a sea change in American jurisprudence, and it is entirely motivated by Justice Roberts’ loyalty to his conservative agenda. To do this, the Supreme Court recognized for-profit corporations as having the same constitutional rights as American individuals. Bizarrely, the other “originalists” Scalia, Alito and Thomas joined in the opinion despite no evidence whatsoever that this result comported with the original intent of the Bill or Rights.
Justice Stevens calls out the conservative majority of the Court, specifically pointing out the disingenuity of the majority’s opinion. According to Justice Stevens’s dissent, which spans some 90 pages, “The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.” Justice Stevens continues:
The majority’s approach to corporate electioneering marks a dramatic break from our past.
. . . .
The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce, 494 U. S. 652 (1990). Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law . . . .
. . . .
In his landmark concurrence in Ashwander v. TVA, 297 U. S. 288, 346 (1936), Justice Brandeis stressed the importance of adhering to rules the Court has “developed . . . for its own governance” when deciding constitutional questions. Because departures from those rules always enhance the risk of error, I shall review the background of this case in some detail before explaining why the Court’s analysis rests on a faulty understanding of Austin and McConnell and of our campaign finance jurisprudence more generally. I regret the length of what follows, but the importance and novelty of the Court’s opinion require a full response.
. . . .
The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution.
Justice Stevens throws the issue of stare decisis squarely into the argument at hand, and arguably into the face of Chief Justice Roberts, who actually discussed the Planned Parenthood vs. Casey case during his confirmation hearings as an example of his support and respect for stare decisis.
The final principle of judicial process that the majority violates is the most transparent: stare decisis. I am not an absolutist when it comes to stare decisis, in the campaign finance area or in any othe
r. No one is. But if this principle is to do any meaningful work in supporting the rule of law, it must at least demand a significant justification, beyond the preferences of five Justices, for overturning settled doctrine. “[A] decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.” Planned Parenthood of South-Eastern Pa. v. Casey, 505 U. S. 833, 864 (1992). No such justification exists in this case, and to the contrary there are powerful prudential reasons to keep faith with our precedents.
The Court’s central argument for why stare decisis ought to be trumped is that it does not like Austin. . . .
. . . .
Although the majority opinion spends several pages making these surprising arguments, it says almost nothing about the standard considerations we have used to determine stare decisis value, such as the antiquity of the precedent, the workability of its legal rule, and the reliance interests at stake.
. . . .
We have recognized that “[s]tare decisis has special force when legislators or citizens ‘have acted in reliance on a previous decision, for in this instance overruling the decision would dislodge settled rights and expectations or require an extensive legislative response.’” Hubbard v. United States, 514 U. S. 695, 714 (1995) (quoting Hilton v. South Carolina Public Railways Comm’n, 502 U. S. 197, 202 (1991)). Stare decisis protects not only personal rights involving property or contract but also the ability of the elected branches to shape their laws in an effective and coherent fashion. Today’s decision takes away a power that we have long permitted these branches to exercise. State legislatures have relied on their authority to regulate corporate electioneering, confirmed in Austin, for more than a century. The Federal Congress has relied on this authority for a comparable stretch of time, and it specifically relied on Austin throughout the years it spent developing and debating BCRA. The total record it compiled was 100,000 pages long. Pulling out the rug beneath Congress after affirming the constitutionality of §203 six years ago shows great disrespect for a coequal branch. [Emphasis added].
. . . .
In the end, the Court’s rejection of Austin and McConnell comes down to nothing more than its disagreement with their results. Virtually every one of its arguments was made and rejected in those cases, and the majority opinion is essentially an amalgamation of resuscitated dissents. The only relevant thing that has changed since Austin and McConnell is the composition of this Court. [Emphasis added].
Justice Stevens concludes:
Today’s decision is backwards in many senses. It elevates the majority’s agenda over the litigants’ submissions, facial attacks over as-applied claims, broad constitutional theories over narrow statutory grounds, individual dissenting opinions over precedential holdings, assertion over tradition, absolutism over empiricism, rhetoric over reality. Our colleagues have arrived at the conclusion that Austin must be overruled and that §203 is facially unconstitutional only after mischaracterizing both the reach and rationale of those authorities, and after bypassing or ignoring rules of judicial restraint used to cabin the Court’s lawmaking power. Their conclusion that the societal interest in avoiding corruption and the appearance of corruption does not provide an adequate justification for regulating corporate expenditures on candidate elections relies on an incorrect description of that interest, along with a failure to acknowledge the relevance of established facts and the considered judgments of state and federal legislatures over many decades.
In a democratic society, the longstanding consensus on the need to limit corporate campaign spending should outweigh the wooden application of judge-made rules. The majority’s rejection of this principle “elevate[s] corporations to a level of deference which has not been seen at least since the days when substantive due process was regularly used to invalidate regulatory legislation thought to unfairly impinge upon established economic interests.” Bellotti, 435 U. S., at 817, n. 13 (White, J., dissenting). At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.
This opinion and outcome is judicial activism at its worst. Stevens is spot-on in his criticism of his fellow Justices. The only credible justification for overturning a century of precedent is that the makeup of the Supreme Court has changed with the additions of Roberts and Alito, and that these conservatives pretend to respect precedent while champing at the bit waiting for a chance to overturn precedent with which they disagree.
Roberts is no umpire. He’s more like a scam artist hiding in a smoke-filled back room trying to push a counterfeit of the rulebook to help out his team. No doubt the Roberts Court will be remembered better for its majority’s intellectual dishonesty and agenda-promoting judicial activism than for its adherence to the rue of law.
