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The Power To Fix Mistakes

For 58 shameful years prior to the Supreme Court’s decision in Brown v. Board of Education, the words of Justice Henry Billings Brown defined “equal protection” in American race relations.

Writing for the majority in Plessy v. Ferguson, Justice Brown declared in 1896 that states could require racial segregation in public places, because “separate, but equal,” accommodations are permitted under the Fourteenth Amendment.

“The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either,” wrote the Massachusetts-born jurist. “Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.”

The Plessy decision condemned generations of black Americans to second-class treatment and emboldened whites to deny, through law and violence, the civil rights of their neighbors. Though the Court’s reversal of Plessy in Brown v. Board of Education did not make everything right overnight, it was a critical step in a process that has made America a far better place for everyone.

But what if the justices who were on the bench in 1954 had opted to apply the principle of stare decisis, which basically means that precedents almost always must be followed? The court had already upheld segregation. The rules were clear, and the language of the Fourteenth Amendment had not changed since 1896. Following its own earlier decisions in Plessy and later cases, the high court could have ruled that the “separate, but equal,” schools of Topeka, Kansas, were perfectly legal.

Fortunately, it did not.

We are reading a lot about stare decisis this month as the Supreme Court considers whether Congress can ban politicking by corporations and labor unions in the period leading up to elections. The court, which usually does not return from its summer recess until October, held a special session Sept. 9 to reconsider the case of Citizens United v. Federal Election Commission. I first wrote about the case here in July.

In the run-up to the 2008 presidential primaries, the conservative group Citizens United produced the feature-length film Hillary: The Movie. The Bipartisan Campaign Reform Act (BCRA)—better known as the McCain-Feingold Act—prohibits corporations and unions from directly funding campaign speech and from broadcasting any “electioneering communications” shortly before an election. Citizens United is organized as a not-for-profit corporation, and had scheduled a cable television release of the film shortly before the Iowa caucuses and New Hampshire primary.

The Supreme Court’s 1990 ruling in Austin v. Michigan Chamber of Commerce established that there was nothing unconstitutional about preventing corporations from using their treasuries for campaign speech, clearing the way for McCain-Feingold’s passage in 2002. McConnell v. Federal Election Commission upheld McCain-Feingold after the fact in 2003.

The law was clear and the precedents fully supported it. When the FEC blocked Hillary: The Movie from airing on cable, Citizens United’s only hope was to argue that the film was not an electioneering communication at all but simply a documentary that did not explicitly aim to convince viewers to vote for or against Clinton. This was an uphill battle for the film, which CNN recently described as “a scorching attack on the woman then running for president.”

Suddenly, the tide shifted. When it left the case undecided at the beginning of the summer, the Supreme Court said it was not content simply to settle the question of whether the FEC acted in accordance with law and precedents when it barred Hilary: The Movie. The Court threw the precedents themselves into question.

In some instances, laws or the Constitution can be reasonably interpreted two different ways. Without stare decisis, the Court might unpredictably switch back and forth between conflicting interpretations. Legislatures would not know how to write valid laws, individuals would be unable to determine how to conduct their affairs, and lower courts would have no stable guide to look to in forming their decisions. Justice Louis Brandeis wrote in a 1932 dissent, “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.”

However, the Court can and must overturn its own precedents on occasion. When an earlier decision addressing a fundamental freedom or basic legal principle is clearly wrong, it must be fixed. As Steven R. Shapiro of the American Civil Liberties Union put it, “You can’t have a system that says if you make a mistake, it must stand forever.” Fortunately, ours is not such a system.

In Citizens United v. Federal Election Commission, the government is invoking stare decisis to try to preserve McCain-Feingold’s restrictions on “electioneering communications.” Former solicitor general Seth P. Waxman told the court when it first addressed Citizens United that “overruling Austin or McConnell in this case would be unwarranted and unseemly. Stare decisis requires respect for precedents absent a special justification for overruling them. No such justification exists.” Numerous parties and friend-of-the-court briefs made the same argument when the Court revisited the case.

But, in fact, this is exactly the type of case in which stare decisis must be cast aside. McCain-Feingold is an unabashed restriction on freedom of speech. The First Amendment declares Congress “shall make no law” abridging that freedom. Moreover, the speech in question is political speech, which the courts have held requires the greatest degree of freedom and protection. The spectacle of Congress writing laws determining who may speak, and when, on matters involving the election of its own members is enough to make the McCain-Feingold restrictions nearly indefensible.

Brown v. Board of Education now has stood for 55 years, nearly as long as Plessy before it. If a case somehow reached the Supreme Court challenging Brown, we would not need to rely on stare decisis to preserve the progress and healing that Brown has brought us. Brown would be upheld because it is right, not simply because it is there.

That is how the highest court in the land must address any statute that tries to restrict fundamental freedoms the Constitution recognizes as the birthright of us all.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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