The Death of Stare Decisis

The majority in Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010), and especially the Roberts ‘concurrence which explains the majority’s analysis of the value of precedent, did not give proper consideration to stare decisis. Roberts, in his concurrence,  quotes Adarand Construction, Inc v. Pena, 515 U.S. 200, 231 (1995), stating if  ‘intrinsically sounder’ doctrine [was] established in prior cases . . . [it] may “better serv[e] the values of stare decisis than would following [the] more recently decided case inconsistent with the decisions that came before it.” Citizens United, 130 S.Ct. at 921 (emphasis added). The Roberts’ concurrence advocated overturning the Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) and McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003) decisions for three reasons. Firstly, the Austin decision is incompatible with earlier precedent. Citizens United, 130 S.Ct. at 921-922. Secondly, the Austin decision had “spirited dissents.” Id. at 922. Thirdly, the Austin decision is destabilizing because of its breadth. Id. at 922-23. However, Roberts’ method of overturning precedent ignores how the Supreme Court has analyzed the proper weight given to precedent in prior decisions.   

Although our Supreme Court in Planned Parenthood v. Casey, 505 U.S. 833, 854-855 (1992) has recognized that stare decisis is not an inexorable command, it does give precedent some value in determining whether or not the court should overturn established law. The weight that justices give stare decisis is determined by a number of factors: whether the precedent is unworkable, whether the precedent could be removed without serious inequity and damage to society, and whether the law’s growth has been discounted by society. Id.

In Casey, the majority opinion emphasized that Roe v. Wade was still workable, and, more importantly that the Roe v. Wade majority had created a reliance interest in having an abortion should contraception fail. Id. at 855-56. In Contrast, in Lawrence v. Texas, 539 U.S. 558, 577 (2003), the Supreme Court held that the ban on homosexual sex created uncertainty, and that there was no reliance interest created when banning homosexual sex. The final prong of the stare decisis analysis asks whether the doctrinal footing of the law had changed so much that the law was seen as anachronism. Casey, 505 U.S. at 858. The majority in Casey held that the reasoning behind Roe v. Wade still existed, even if they might not overturn a law banning abortion if it were a case of first impression. Id. at 858-59. However, the majority in Lawrence indicated that views had changed, and that there was a growing sense that discrimination against homosexuals is wrong. Lawrence, 578.

However, the approach to stare decisis by the majority in Casey and Lawrence is not the method Roberts used in his concurrence. Instead of the structured three-pronged test analysis used in Casey and Lawrence, the Roberts’ concurrence indicates that the majority overturned Austin and McConnell because those opinions overturned precedent in a way that Roberts called an “aberration” from the earlier precedent. Citizens, 130 S.Ct. at 921.  Roberts’ opinion focuses on the earlier precedent, instead of focusing on the existing precedent. Although Roberts’ and the majority examine some of the criteria listed in Casey and Lawrence, it gives more weigh to earlier precedent than to existing precedent. While Roberts’ indicated that the Austin precedent was not working because it applied too broadly, and the majority also stated that the government had no reliance interest in preventing corporations from freely spending in elections. Id. at 913 and 920.  Yet, the Roberts does not ask whether people’s views had changed enough to make the law seem like an anachronism, instead he reasons that the Austin and McConnell decisions were a mistake in the first place. Id. at 921. Roberts gives more deference to precedent that has been overturned than the existing precedent at the time Citizens was decided.

The Roberts opinion in Citizens United is an example of judicial activism because the opinion is disingenuous to the factors of stare decisis laid down in Lawrence and Casey. The majority in Casey warned against judicial activist judges overturning precedent without properly weighing stare decisis. The Casey majority stated that “the Court's power lies . . . in its legitimacy,” and that “[t]he legitimacy of the Court would fade with the frequency of its vacillation. Casey, 505 U.S. at 865-66.  The majorities in Casey and Lawrence used a method to evaluate whether or not to give deference to precedent. The analysis of those majorities used objective factors to weigh whether to uphold the precedent so that the court did not overstep its bounds when making its decision. The Roberts court did not properly weigh the factors of stare decisis, instead it gave undue deference to precedent that had been overturned. This is just the sort of judicial activism that undermines the public’s trust in our court system.