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Sammy the Mouth Alito

by CHRISTOPHER BRAUCHLI

It seemed rude, but Sammy was just coming to the defense of a colleague. It happened during the State of the Union address when Sammy mouthed the words “Not true” in response to the President’s comments about a recently decided U.S. Supreme Court case. Johnny was still smarting, insofar as a Chief Justice of the United States ever smarts, from the fact that that decision demonstrated that when testifying before the Senate Judiciary Committee at his confirmation hearing, he had his fingers crossed.

One of the issues that concerned some of the senators during that hearing was whether Judge Roberts’s ideology would cause him to ignore the established principle of stare decisis that says courts should give great weight to judicial precedent and be slow to overturn established law. The reasons for the rule were best expressed by Judge Roberts himself when in response to questions from Senator Arlen Specter he said:

“I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough — and the court has emphasized this on several occasions — it is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question, it just poses the question.

And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis. . . . If a[n] overruling of a prior precedent is a jolt to the legal system, it is inconsistent with principles of stability. . . . [T]he principles of stare decisis recognize that there are situations when that’s a price that has to be paid.”

On January 21, 2010, in the case of Citizens United v Federal Election Commission, the Chief Justice was part of the 5 person majority that overruled decades of established law to find that the law limiting corporate expenditures in political campaigns is unconstitutional even though, as Justice Stevens observed in his dissent, the Court had adequate grounds to rule in favor of the plaintiffs without holding the statute unconstitutional. Mindful of his senate testimony, the Chief Justice wrote a 14-page mea culpa (in legal parlance called a concurring opinion) explaining why his vote to overrule earlier cases did not overrule his testimony before the U.S. Senate. What was notable about the Chief Justice’s concurring opinion was not so much what he wrote as to how it came to be written.

Citizens was first argued before the Supreme Court in March, 2009 and a decision was expected by late June. Instead, on June 29th the Court announced that it had set the case for reargument one month before its regular fall term was to begin and set a schedule for the filing of briefs. It said that it wanted the hear argument on the very issues that the parties had stipulated were not being presented to the Court. It asked the parties to advise it whether it should overrule either or both of two prior rulings on campaign finance law.

Justice Stevens observes in his 94 page dissent that the parties had agreed that neither side was attacking the constitutionality of the Bipartisan Campaign Reform Act of 2002 insofar as it prevented corporations from making independent expenditures for speech that is an “electioneering communication” or that expressly advocates the election or defeat of a candidate.

Commenting on the procedural issues, Justice Stevens said that although there was initially a “facial challenge to the constitutionality of Section 203 [of the Act]” . . . . [i]n its motion for summary judgment . . . Citizens United expressly abandoned its facial challenge. . . and the parties stipulated to the dismissal of that claim.” He observes that the Court typically does not anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise fact to which it is to be applied.

Only time will tell whether Citizens will open the monetary floodgates to corporate involvement in political campaigns since corporations can now make independent expenditures in support of candidates or parties. What no one can debate is that by joining the members of the Court who said the case should be reframed and reargued so that the Court could overrule earlier decisions, the Chief Justice made a mockery of his statements to the Senate Judiciary Committee. Not that it matters. He now is where he wanted to be and no one can touch him.

CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be e-mailed at brauchli.56@post.harvard.edu.

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