Sep 10, 2009

Citizens United v. Federal Election Commission

The Hillary Movie Case, as it is apparently known within legal circles (or is everyone just saying that's what they call it?), was heard yesterday by the Supremes in a rare summer argument. It was Justice Sotomayor's first go in the big room. Sounds like she jumped right in. Hopefully they'll release the oral argument recording soon.

Until that time, we can settle with this: Dahlia Lithwick (who, for my tastes, I speak of far too much on this blog) has a good rundown of the oral argument, if you can get past her snide partisan remarks (e.g. Scalia "growls" at Elena Kagan, the Solicitor General, while Stevens "browbeats" Ted Olson, former George W. Bush SG; not surprising, given her penchant for hypocrisy in this arena).

I have a hard time listening to people being critical about the Court overturning its own precedent, as if that is in some way a nefarious end in and of itself. The ace in the hole has always been Plessy v. Ferguson, a precedent that was--as it should have been--overturned. According to Lithwick, "the name of the game today is watching the Roberts Five shrink formerly binding court precedent into thin air without being forced to overrule the cases themselves" (referring to McConnell v. FEC and Austin v. Michigan Chamber of Commerce, two cases upholding campaign donation limits on corporations). It's kind of disengenuous to treat the Roberts Court like some precedent-smashing, stare decisis-flouting cabal (aside: I found out this weekend that the etymology of 'cabal' is really interesting) simply for the sake of precedent itself. Lithwick, like anyone, I suppose, thinks that all cases she agrees with should be upheld and that all cases she disagrees with should be overturned. Justice Thomas--scourge of 'progessive' jurists--hasn't said it himself, but his colleague Justice Scalia has mentioned during interviews that his friend Clarence doesn't believe in stare decisis. That is, Thomas thinks that if a case was wrongly decided in the past, it is still wrong now and should be overturned. He uses Plessy as his reasoning for that. It sounds like a pretty good one to me... (Now, if Lithwick is worried that the Court will effectively overturn those cases without really saying that they are overturned--which, admittedly, the Chief has done on numerous occasions--I can buy into it. I don't think that's what she's going for, though.)

Also, Will Haun at The Bench on NRO thinks that Roberts is the swing vote in this case (Scalia, Kennedy, and Thomas are on the books wanting to overturn McConnell and Austin). E.J. Dionne spends his time at the Washington Post flipping out and being dead wrong about the state of current campaign finance jurisprudence.

Anyway, the case is interesting, Lithwick summarizes the oral argument well, and I look forward to the opinion, which will hopefully be written and released shortly.

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