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The End Of ‘Stare Decisis’

It’s time to be realistic about the relationship between the U.S. Supreme Court and the Constitution. That relationship has two elements:

First, the Constitution means whatever the Supreme Court says it means.

Second, the Supreme Court is free to change its mind whenever it wants.

You may find it disturbing that the supreme law of the land is, at any given time, unknowable to the roughly 310 million of us who are bound by it, and that so much power is wielded collectively by nine individuals who hold their jobs for life. There are good reasons to be disturbed. But there is no point in ignoring facts just because facing those facts is uncomfortable.

Justices have always paid homage to the principle of “stare decisis,” which holds that once the courts have settled a precedent, other courts of equal or lesser authority should make every effort to follow that precedent. Stare decisis has become almost a household phrase in the past several decades as the Supreme Court’s membership has become politicized and polarized.

Since Roe v. Wade legalized abortion nationwide in 1973, and especially since abortion opponent Ronald Reagan became president in 1981, stare decisis has been a coded test: candidates for the high court pledge allegiance to the principle as a way to convince skeptics that they have not made up their minds in advance whether Roe should be overturned, even though anyone even remotely viable as a candidate for the job has already formed a strong opinion one way or the other.

No recent nominee to the high court could have won Senate confirmation without acknowledging stare decisis. As the court has become more aligned with conservative politics, liberals have placed greater emphasis on stare decisis as a bulwark against reversing many of the principles they hold dear, starting with Roe but extending to many other matters, including affirmative action and the scope of government power to regulate everything from health care to gun ownership.

Now the liberals, too, have effectively abandoned stare decisis. Last week, Justices Ruth Bader Ginsburg and Stephen Breyer called for the court to revisit its decision in Citizens United v. Federal Election Commission, just two years after the court decided in that case that corporations and labor unions have a First Amendment right to spend their own money on political advertising.

The Montana Supreme Court disregarded Citizens United in a recent case known as American Tradition Partnership v. Attorney General for the State of Montana, ruling 5-2 that Montana has a “unique and compelling interest” in regulating corporate spending in political campaigns. Ginsburg and Breyer voted with the other justices to stay the Montana court’s decision, but they appended a strongly worded call for the high court to reconsider its Citizens United holding.

“Montana’s experience, and experience elsewhere since this court’s decision in Citizens United v. FEC makes it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption’,” wrote the two justices, both of whom dissented in the original 5-4 Citizens United holding. All five justices who formed that majority remain on the court.

The Constitution also remains as it was when Citizens United was decided. And although corporations have been free for two years to spend their money independently of the candidates they support, and some have spent money freely, it is hard to know just what “experience” in Montana and elsewhere has shown that such spending gives rise to corruption in appearance or in fact. I have not heard of any candidate or officeholder being charged with having taken or promised an official act in return for such expenditures.

Not that it matters. The Citizens United majority found that the constitutional protection of freedom of speech applies to all speech, including speech by corporations. Critics of the decision argue that such protections should apply only to natural persons, but that is not what the First Amendment says. In calling for reconsideration, Ginsburg and Breyer are really just saying that they lost the first contest and they would like a rematch. That is exactly what the concept of stare decisis should prevent.

The conservative bloc on the high court does not conduct itself very differently. It has also felt free in many cases, including Citizens United itself, to reverse or half-heartedly distinguish earlier precedents when it thinks such precedents were wrongly decided.

So I’ll join the party here, and amend my earlier statement. The Constitution does not mean whatever nine Supreme Court justices tell us it means. It means whatever five justices tell us it means. The other four justices can only wait, like the rest of us, for someone on the current majority to change position or leave the court.

Yes, it’s disturbing, but it is what it is. Modern justices, rightly or wrongly, do not have the requisite respect for their predecessors to make precedent anything more than a matter of judicial convenience. They think they can invent a better constitutional wheel. The rest of America is in no position to argue.

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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