Bench Memos

Re: Overruling Austin

These excerpts (citations omitted) from the Chief Justice’s concurring opinion illustrate why the Left may have ample reason to be upset with Solicitor General Elena Kagan for the grounds upon which she chose to defend Austin:

Finally and most importantly, the Government’s own effort to defend Austin—or, more accurately, to defend something that is not quite Austin—underscores its weakness as a precedent of the Court. The Government concedes that Austin “is not the most lucid opinion,” yet asks us to reaffirm its holding. But while invoking stare decisis to support this position, the Government never once even mentions the compelling interest that Austin relied upon in the first place: the need to diminish “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that havelittle or no correlation to the public’s support for the corporation’s political ideas.”

Instead of endorsing Austin on its own terms, the Government urges us to reaffirm Austin’s specific holding on the basis of two new and potentially expansive interests—the need to prevent actual or apparent quid pro quo corruption, and the need to protect corporate shareholders. Those interests may or may not support the result in Austin, but they were plainly not part of the reasoning on which Austin relied.

To its credit, the Government forthrightly concedes that Austin did not embrace either of the new rationales it now urges upon us. [Multiple excerpts from brief and oral argument.]  …

To the extent that the Government’s case for reaffirming Austin depends on radically reconceptualizing its reasoning, that argument is at odds with itself. Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.

Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court’s past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect.