Legal News

A Stare Decisis Stare-Down: Another Look at the Citizens United Case

By Ashby Jones

It’s a funny thing, this notion of “stare decisis.” Supreme Court justices can pay great deference to it — the custom of upholding earlier decisions — in certain circumstances. In other cases, however, they’ll just toss the notion out the window.

A Washington Post article out Tuesday explores this notion in advance of Wednesday’s highly anticipated arguments in the Citizens United case. (Click here and here for earlier LB posts on the case.)

The case, as characterized by the WaPo, pits a conservative group’s campaign film about Hillary Rodham Clinton against federal campaign finance laws. The court has said it’s mulling overturning two decisions that said government has an interest in restricting the political activities and speech of corporations.

The WaPo explains:

There are two precedents at stake in Wednesday’s rehearing. One is the court’s 1990 decision in Austin v. Michigan Chamber of Commerce, in which it upheld a state law that said corporations could be barred from spending their profits to urge a candidate’s election or defeat.

The second is part of the 2003 decision upholding Congress’s Bipartisan Campaign Reform Act, commonly known as the McCain-Feingold campaign finance law. The court ruled 5 to 4 that Congress may curtail corporate spending on advertising that mentions a candidate shortly before an election, even if it does not explicitly support or oppose that person.

But to overrule one — or both — of these decisions is almost certain to elicit cries that the court is abandoning what should be a primary goal — protecting its precedents.

“Overruling Austin or McConnell in this case would be unwarranted and unseemly,” former solicitor general Seth P. Waxman earlier told the court on behalf of McCain and other congressional sponsors. “Stare decisis requires respect for precedents absent a special justification for overruling them. No such justification exists.” (Gibson Dunn’s Ted Olson will argue the case for the conservative group, Citizens United. For a piece penned by him in today’s WSJ, click here.)

That said, the court regularly rejects precedents, in ways urged by both conservatives and liberals.

The court ruled in 1986 in Bowers v. Hardwick that the Constitution contains no protection for gay rights. Justices overturned the decision 17 years later, with Kennedy writing: “Bowers was not correct when it was decided, and it is not correct today.”

Steven R. Shapiro of the American Civil Liberties Union told the WaPo that the court, the only body that can remedy a constitutional mistake, should reexamine the free-speech questions raised by McCain-Feingold.

“Stare decisis does matter, and justices should think long and hard before overturning decisions” of previous courts, Shapiro said. “But you can’t have a system that says if you make a mistake, it must stand forever.”

Full post as published by Law Blog - WSJ.com on September 08, 2009 (boomark / email).