Do you remember the exchange between Arlen Specter and nominee Roberts about stare decisis during Robert's confirmation hearing? It drew a lot of attention because nobody, including me, knew what it was. It turns out it's all about the important principle of precedent. How in the world can a democracy exist if every new Supreme Court were to ignore the courts of the past and simply reinterpret the laws according to their political whim, or their masters political whim? Looks like we're about to find out.
Justice Roberts repeatedly gave the impression that he understood the importance of stare decisis and supported the concept. The precedent of campaign reform has been around for more than 100 years.
This effort to bring about more comprehensive campaign finance reform began in 1907 when Congress passed the Tillman Act, which prohibited corporations and national banks from contributing money to Federal campaigns. The first Federal campaign disclosure legislation was a 1910 law affecting House elections only. In 1911, the law was amended to cover Senate elections as well, and to set spending limits for all Congressional candidates.
The Federal Corrupt Practices Act of 1925, which affected general election activity only, strengthened disclosure requirements and increased expenditure limits. The Hatch Act of 1939 and its 1940 amendments asserted the right of Congress to regulate primary elections and included provisions limiting contributions and expenditures in Congressional elections. The Taft-Hartley Act of 1947 barred both labor unions and corporations from making expenditures and contributions in Federal elections.
The Federal Election Campaign Act of 1971 (P.L. 92-225), together with the 1971 Revenue Act (P.L. 92-178), initiated fundamental changes in Federal campaign finance laws.
Nope, sure doesn't look like there's much precedent for campaign financing laws, that is if you ignore the last hundred years or so.
more below the fold
So there's absolutely no doubt that the precedent for campaign finance laws is well established. But despite what justice Roberts said at his confirmation hearing, he deliberately chose to ignore the precedent. And although civil rights law only has about a half a century precedent, Roberts chose to ignore it also.
So is Justice Roberts a liar, plain and simple? Did he lie to congress during his confirmation hearings when he left the impression that he would follow the concept of stare decisis? From a Washington Post transcript of the hearing.
SPECTER: Justice Frankfurter articulated the principle, quote, "We recognize that stare decisis embodies an important social policy that represents an element of continuity in law and is rooted in the psychological need to satisfy reasonable expectations."
Justice Cardozo, in a similar vein, quote, "No judicial system could do society's work if each issue had to be decided afresh in every case which raised it."
In our initial conversation, you talked about the stability and humility in the law.
Would you agree with those articulations of the principles of stare decisis, as you had contemplated them, as you said you looked for stability in the law?
ROBERTS: Yes, Mr. Chairman, I would. I would point out that the principle goes back even farther than Cardozo and Frankfurter. Hamilton, in Federalist No. 78, said that, "To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents."
So, even that far back, the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability, adherence of integrity in the judicial process.
...
ROBERTS: That is the general approach when you're considering stare decisis. It's the notion that it's not enough that you might think that the precedent is flawed, that there are other considerations that enter into the calculus that have to be taken into account: the values of respect for precedent, evenhandedness, predictability, stability; the considerations on the other side, whether a precedent you think may be flawed is workable or not workable, whether it's been eroded.
...
SPECTER: A jolt to the legal system, a movement against stability, one of the Roberts doctrines.
ROBERTS: If a overruling of a prior precedent is a jolt to the legal system, it is inconsistent with principles of stability.
But maybe I'm too harsh on Roberts. Maybe he didn't really lie to Senator Specter, maybe it was his intention all along to undermine one of the 3 branches of our government by deliberately throwing the crucial concept of precedence out the window. How can you believe in American democracy while at the same time trying to deliberately undercut one of the 3 branches of government?
This brings up the question of what is an impeachable offense for a Supreme Court Justice? Lying to a congressional committee apparently isn't. I used to think that voting for such anti-democracy things as legalized bribery or giving states the ability to deny citizens the right to vote would be an impeachable offense, but damn, those are just planks in the Republican platform now.
So lets stop beating around the bush. We no longer have a Supreme Court in any sense that most people understand a Court. It is no longer a body that decides the constitutionality of laws. It is now a conservative legislative body that makes laws by choosing and ruling in favor of cases that support plutocracy, and striking down laws that support a peoples democracy. We can't even call the Robert's court an activist court, it is now nothing more than another legislative arm of the conservative Oligarchs.
You don't think the 2014 election is critical? If the Republicans win the Senate, there's no way they will confirm an Obama nominee to the court who will support a peoples democracy or Constitutional Republic. The Republican party is simply the political arm of the Koch type Oligarchs and they are going to do everything they can to rig our election system so that liberal Democrats can never gain power again. From here on out, EVERY election is absolutely critical and you better get your butt, and your neighbors butt to the polls for every one!