Citizens United: Killing Stare Decisis and Roe v. Wade

In law school, I learned that the party who succeeds in framing the question to be decided has a better chance of succeeding in court. Citizens United v. Federal Election Commission, decided last week, is the ultimate example. The Supreme Court did not have to review in this case, and certainly did not need to issue such a sweeping opinion.

The lawsuit sought injunctive and declaratory relief about whether the Citizens United, an anti-abortion rights group, could run its anti-Hillary Clinton video on pay-per-view during the 2008 election. This particular case is factually moot. The election is over. The only reason to keep going is to change the law - in short, to legislate by judicial decision.

Generally courts only decide matters that are actually in controversy. But sometimes, when a factual situation is so common but cannot be dealt with on an individual basis in a timely manner, the Supreme Court will review a case anyway because the problem is “capable of repetition, yet evading review.” It’s not surprising that the cases cited for this proposition often involve abortion rights. By the time any abortion case gets to the Supreme Court, the pregnancy at issue is over one way or another. This principle is what gave the 1973 Supreme Court the justification for reviewing Roe v. Wade, decried as judicial overreaching by abortion foes

In Citizens United, Supreme Court went much farther than in Roe in reviewing a case it needn’t address. Not only is the election over, but Citizens United had stipulated to the dismissal of its First Amendment challenge to 2 U.S.C. 441b. Yet the Supreme Court still chose to hear the case, long after the election was over. Why? To test a method for getting policy matters before the Court, which is tasked by the Constitution with deciding matters in controversy. By overreaching so far in Citizens United, the Supreme Court has made it easy to step back and address the issue of abortion rights without making historic inroads in legislating from the bench. They did that last week.

By the time the Supreme Court decided to review Citizens United, the only controversy left was at the Court, not between the parties. Unless the Supreme Court had an issue it wanted to take on, it did not need to decide this case. The Supreme Court issued its statement of probable jurisdiction on November 14, 2008, the week after Obama was elected, and long after Hillary Clinton had been eliminated from candidacy.

Which brings me to the parties.

The man behind Citizens United is David Bossie, a republican strategist an anti-choice juggernaut. Citizens United spent about $1.25 million in legal fees on the case -- so much, Bossie said, that it "makes you cry." Bossie was quoted in the Washington Post: "We have been trying to defend our First Amendment rights for many, many years. We brought the case hoping that this would happen.” Mr. Bossie is the same guy who brought you “Rediscovering God In America,” hosted by Newt Gingrich.

David M. Mason, a longstanding advocate of the specious “corporate political spending is speech so you can’t limit it” position, was The Vice-Chairman of the FEC in December 2007 when Citizens United was filed, and became Chairman in January 2008. He is also a staunch opponent of abortion rights and a Senior Fellow at the Heritage Foundation. He’s committed to telling women what to do with their bodies. So why did he choose to pursue this moot point? Because it set up the perfect softball for a Supreme Court assembled in part for this purpose.

Mr. Mason was one of “Seven FEC commissioners and one chairman” who filed an amicus brief on the case. Mason’s brief is written by James Bopp, attorney for a number of anti-abortion groups. Mason and Bopp acknowledge that a determination on the merits did not require Court to overturn decades of limitations on corporate political speech. Their the brief continues to instruct Court on how it choose to fix the policy problem by overruling case law. It’s not a coincidence that this brief makes sure it cites Roe v. Wade .

So now we have Supreme Court precedent for: (1) Choosing to take on policy matters under the thinnest of pretext, and (2) Choosing judicial activism over stare decisis. Stare decisis is the principle that once a court of competent jurisdiction passes judgment on an issue, it’s holding on the issue should not be overturned unless absolutely necessary. It is the principle that makes the common law system a reasonably predictable way of resolving disputes. With this Court, stare decisis will no longer caution U.S. judges against overruling case law. The scales of justice are skewed.

Supporters of a woman’s right to choose: be prepared. If the case the Supreme Court is looking for isn’t pending today, it will be soon. The issue is capable of repetition but evading review.