Reversing Rotten Supreme Court Decisions: A Choice of Two Solutions

“The tension between what he said at his confirmation hearing and what he is doing as a justice is a blow to Roberts’s reputation for candor and a further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.” [Conservative icon Judge Richard A. Posner, “How Judges Think,” Harvard University Press.]

The multitude of advocates for the Repeal Amendment of Citizens United are in fact,faced with a choice of two paths:

  1. relying on 2/3 of a corrupt Congress and ¾ of equally corrupt State legislatures to amend the Constitution – or
  2. waiting for a change in one of the most corrupt Supreme Courts in our history, and hoping that a new Court will hear a case that will induce it to overturn a decision that80% of Americans disagree with. Although both remedies seem immediately improbable, evidence indicates the latter is more likely to succeed in time.

The ongoing nation-wide movement to revoke Citizens United by amending the Constitution is typified by messages such as,

“This decision overturned a century of precedent….please join with Daily Kos and our partners at CREDO by signing our petition urging Congress to pass a constitutional amendment that would reverse the damage caused by the Citizens United decision and end corporate personhood.”

The Controversy Over Stare Decisis – Orwellian Word Stew

American law operates under the doctrine of stare decisis, establishing that “prior decisions should be maintained, even if the current court would otherwise rule differently.”

The Court’s rationale for overruling stare decisis is given in Citizens United decision as,

“Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error.Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned. We have also examined whether experience has pointed up the precedent’s shortcomings.”

In his concurrence of Citizens United v. F.E.C., Chief Justice Roberts used anunrelated and irrelevant “straw man” elaboration on when it is acceptable for the Court to overturn stare decisis:

… “if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.”

Robert’s comments constitute a trite non-sequitor. They are unrelated to the situation or to Justice Stevens’ original condemnation of the majority of the Supreme Court-

“At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”

The Situational Values of Supreme Court Justices –Scalia Falls Off Both Sides of the Horse

When Justice Scalia was in a minority, he would invoke “tradition” to constrain liberal judicial activism. As part of a small majority he has reversed his ideology and proclaimed a belief in “the antiquity of the precedent.”

Commenting on Scalia’s strongly worded dissent in Lawrence v. Texas (2003), which struck down state sodomy laws, New York Times columnist Maureen Dowd blasted him as a black-robed Archie Bunker, “misty over the era when military institutes did not have to accept women, when elite schools did not have to make special efforts with blacks, when a gay couple in their own bedroom could be clapped in irons, when women were packed off to Our Lady of Perpetual Abstinence Home for Unwed Mothers.”

Bowers v. Hardwick (1986) Scalia Changes His Position From “Antiquity of the Precedent” to “Binding Precedent”

In 1986, the Supreme Court upheld a Georgia anti-sodomy law that forbade oral or anal sex between consenting adults.

In 2003, the Supreme Court decided the case of Lawrence v. Texas by rejecting Texas’s anti-sodomy law, essentially declaring that the Bowers decision was incorrect. Justice Anthony Kennedy’s majority opinion stated, “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”

Justice Scalia wrote the dissent. The dissent specifically noted that the court was going against stare decisis by overturning Bowers.

Citizens United Overturned Austin

Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), was a case in which the Supreme Court of the United States held that the Michigan Campaign Finance Act, which prohibited corporations from using treasury money to support or oppose candidates in elections, did not violate the First and Fourteenth Amendments. The Court upheld the restriction on corporate speech “Corporate wealth can unfairly influence elections”), and the Michigan law still allowed the corporation to make contributions from a segregated fund.

The case recognized a state’s compelling interest in combating a “different type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”

The decision was overruled by Citizens United.

[The Citizens United decision also overturned parts McConnell v. Federal Election Commission, a 2003 Supreme Court decision that upheld the McCain-Feingold Act, which introduced federal campaign finance reforms.]

West Coast Hotel v. Parrish Overturns (1937) Lochner v. New York (1905) and Adkins v. Children’s Hospital (1923)

Both Lochner v. New York (1905) and Adkins v. Children’s Hospital (1923) were overruled by West Coast Hotel v. Parrish.

The Court decided the Lochner case in 1905, ruling that a New York State law limiting the number of hours a baker could work to 60 per week was unconstitutional. In a 5-4 decision, they declared that the law removed a person’s right to enter freely into contracts, violating the 14th Amendment, “any State [shall not] deprive any person of life, liberty, or property, without due process of law.”

The Court heard the Adkins case in 1923. It regarded a Washington, D.C., law that set a minimum wage for female workers. It was overturned on similar grounds as the Lochner case.

In 1937 the Court decided West Coast Hotel v. Parrish. The matter involved a law very similar to the Adkins minimum wage law, but in this case, the Court decided that the 14th Amendment did not explicitly guarantee freedom of contract, and that such freedom could be limited by reasonable laws designed to protect workers’ health and safety.

Adler v. Board of Education (1952)

McCarthyism resulted in laws that forced public officials to confirm their loyalty to the U.S. and deny any affiliation with the Communist party. One law enacted in New York State allowed schools to fire teachers who belonged to “subversive organizations.” The state teacher’s union told the teachers to refuse to answer, since the question itself violated another state law. Those teachers were all fired.

The union then sued the state board of education. The case eventually went to the Supreme Court, which ruled in 1952 that a law firing teachers who were members of subversive organizations was neither vague nor in violation of freedom of speech or due process.

In the early 1960s, professor Harry Keyishian found himself employed by a private university in the process of merging with a state university. He refused to take the loyalty oath and was dismissed. In the case of Keyishian v. Board of Regents of the University of the State of New York, the Supreme Court ruled that the state law was too vague to be constitutional (you can’t receive your guaranteed due process under the law if you can’t understand it), and that it was also an unconstitutional suppression of free speech and academic freedom. The teachers who had been fired in the 50s sued for their jobs, and won.

Pace v. Alabama (1883) Overturned (unanimously) by Loving v. Virginia (1967)

Pace was a black man living in Alabama, dating a white woman. Alabama’s anti-miscegenation laws forbade sexual relations or marriage between blacks and whites. Pace and his white girlfriend were charged with adultery, since they were living together without being married. State law made it illegal for them to get married. The case was appealed to the U.S. Supreme Court, which determined that protecting the institution of marriage was a valid interest for the state, and that the threat of interracial relationships would cause serious harm to “white marriages.” Therefore, the law couldn’t be ruled unconstitutional.

The case was overturned in 1967. Several lower courts issued rulings based on the same blatantly racist principles in place more than 80 years prior. In Loving v. Virginia, the Supreme Court finally ruled unanimously that such laws had no legal standing and were merely state-sponsored racism. They overthrew a Virginia law against interracial marriage and rendered all other such laws invalid.

Plessy v. Ferguson (separate but equal) Overturned by Brown v. Board of Education (1954)

Following the Civil War and the 13th and 14th Amendments, southern states passed laws attempting to restrict the rights of blacks and keep them separate from whites. Homer Plessy had one-eighth black ancestry, and his light skin allowed him to ride in the white sections of trains, even though Louisiana had laws establishing separate facilities for blacks. He had been selected by the Citizens’ Committee to Test the Constitutionality of the Separate Car Law. Plessy sat in the white section of a train, announced his ancestry, and then refused to move to the black section. He was arrested.

The argument against “separate facilities” laws was that they violated the 14th Amendment, the separation indicating an institutional belief that blacks were inferior to whites. The Supreme Court didn’t believe that the laws were a constitutional violation, ruling against Plessy in a 7-1 ruling (Justice David Josiah Brewer was absent).

This ruling entrenched the legal doctrine of “separate but equal” in U.S. law for more than 50 years.

In 1954, Brown v. Board of Education overturned Plessy, finding that “separate but equal” was invalid and consequently banning racial segregation. Southern states resisted, and the threat of military force was necessary in some instances to enforce desegregation. The decision was an integral part of initiating the Civil Rights Movement in the United States.


80% of Americans disagree with Citizens United, 84% disapprove of Congress and, in spite of this, more than 80% of the despised members of both Houses have been reelected in each election over the past 20 years.

Attempting to convince more than 350 House and Senate members to reverse a law that is making millionaires out of many of them is arguably as likely as getting 38 states, at least 18 of which have already threatened secession to agree to an amendment to reverse Citizens United. Since both are required, it is asking a great deal from the 80% of us who do not believe that the sun revolves around the earth, to expect such altruism from the political serfs of the corporate collective.

Citizens United is a symptom. The Supreme Court is the disease. In this national environment, and especially for this ruling which enriches politicians, it is a lot easier to replace 1 or 2 corrupt justices than it is to amend the Constitution. We have to be patient and keep trying.