Stare Decisis, Mr. Chief Justice

By Miryam Ehrlich Williamson

Illustration by Matt Wuerker

Illustration by Matt Wuerker

Wednesday’s extraordinary Supreme Court session will make history for two reasons: It marks Justice Sonia Sotomayor’s first appearance on the bench. It may also be the beginning of the end of American democracy as we know it, such as it is.

The 69.5 million of us who voted for Barack Obama for president are in the middle of a painful civics lesson, taught by the health insurance and pharmaceutical industries, on just how powerful our right to vote makes us.  But that’s nothing compared to what the Supreme Court may teach us, when the court’s majority hands down their decision in Citizens United v. Federal Election Commission, the reason for the September 9 session. Normally the Court meets from October through June. This year is different, and that fact is enough to chill the blood.

After more than 100 years of legal restraint on corporate control of state and national elections, last June the Supreme Court ordered up oral arguments to help it decide whether to overturn its decisions in several earlier cases. The story begins with a 90-minute film called “Hillary: The Movie,” which Citizens United wanted to show during the 2008 primary season.  You can get the flavor of it in a trailer, here.

In 2008 a lower court sided with the FEC in saying the film could not be shown right before the Democratic primary elections.  In doing so, the court was upholding generations of laws regulating corporate political spending. Citizens United appealed to the Supreme Court, saying its First Amendment right to free speech had been violated.

Instead of ruling on Citizens United, on June 29 the court broadened the issue to include two previous Supreme Court decisions.  In McConnell v. Federal Election Commission (2003), the court had ruled that regulating corporate expenditures did not violate the First Amendment’s free speech guarantee. Earlier, the court had ruled in Austin v. Michigan Chamber of Commerce (1990) that federal and state legislatures do not violate free speech rights by enacting laws governing political activity by corporations.

But now the Supreme Court may sweep away all restraints on the use of corporate money to influence elections at both the federal and state levels.

If you’re concerned now about the role big money plays in elections, consider this, from an article that asks, “Will the Supreme Court Return America to the 19th Century?”:

The Internal Revenue Service estimated in 2005 that the total net worth of U.S. corporations was $23.5 trillion and their post-tax profits were nearly $1 trillion.

How would you like to see that kind of money turned loose to sway the vote?

Given how often the Supreme Court splits 5-4 in favor of the “conservative” (that is, pro-business) viewpoint, the Citizens United decision might seem a foregone conclusion. But for that to happen, John Roberts, the Chief Justice of the Supreme Court, will probably have to show the world that he committed perjury in his testimony to the Senate Judiciary Committee when it was considering Roberts’ nomination by Bush the Second. Perhaps his pride will keep him honest.

Stare decisis is a Latin phrase referring to the obligation of courts to honor their own precedents. Candidates for the Federal bench are expected to pledge fealty to the principle of stare decisis.

Here is what John Roberts said about stare decisis when the Senate Judiciary Committee was considering his nomination to be Chief Justice of the Supreme Court:

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.

Now we’re faced with the prospect of a 5-4 vote in favor of overturning a slew of precedents — a hundred years’ worth, in fact — that has given us a modicum of protection from the influence of enormous wealth spent to promote its own interest in federal and state elections.

When my now-middle-aged offspring were children, I used to tell them there was no sense in worrying about something over which they had no control.  “I’ll tell you when it’s time to worry,” I’d say.

I’m changing my tune. We have no control over what the Supreme Court decides, but I’m worried. This one decision could turn our nation into a fascist state.  Note that I said fascist, not Nazi.  They’re not the same thing, not at all.

Benito Mussolini, the fascist dictator who certainly knew something about the subject, defined fascism as the merger of state and corporate power. What better way could there be to achieve that than turning corporations loose to control elections?

For more on the Citizens United case, read some of the briefs (arguments) linked at the Democracy 21 site. The Solicitor General’s briefs support the law as it is.  The Citizens United briefs explain their view.  There follow a long list of amicus curiae (friend of the court) briefs filed in support of the Federal Election Commission’s ruling.

If the court rules in favor of Citizens United, the only possible remedy is for Congress to do some heavy-duty legislating.  For that to happen, we’re going to have to mount a monumental lobbying campaign.

Pray, if you’re so inclined. Or hope. Or worry. Then get ready to act. We can’t lose our democracy.  We simply can’t.

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2 Responses to “Stare Decisis, Mr. Chief Justice”

  1. Ms. Williamson, Please  reconsider your description of the Court as pro-business. Two of the three business groups weighing in with briefs to the Court–the American Independent Business Alliance and the Council on Economic Development, argued to maintain restrictions on corporate spending.

    The Supreme Court enshrines corporate privilege and property, but this often is to the detriment of small business.

  2. Point taken, Mr. Critic (I’ll call you Friendly if you’ll call me Miryam).  Having once upon a time been half owner of a small business, I might have been more sensitive to the distinction between small businesses and the kind the Supremes favor.

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