During their confirmation hearings, Justices Roberts and Alito told Judiciary Committee members how much they respected stare decisis, the principle that past Supreme Court decisions would be honored and not overruled without compelling reasons to do so. These assurances were part of the elaborate charade put on to fool the willingly gullible Gang of 14 and calm Democratic fears that these new justices would apply a slash and burn approach through the great liberal decisions of the last 50 years. But now that the Roberts/Alito Court has finished its first term, it is painfully clear that there is no precedent, liberal or conservative, of any age that is safe from their radicalism and duplicity.
Christy wrote yesterday about how the new radical “Gang of Five” had cracked the foundations of Brown v. Board of Education (1954) by overruling local diversity efforts to reverse decades of past racial discrimination. For more expert analyses, see recent posts at Balkanization and others compiled here, especially the Mike Graber quote (h/t Christy). But I think Eugene Robinson’s reaction is spot on:
This court would have been perfectly happy for me to go to the “black” high school in my hometown of Orangeburg, S.C., instead of following a handful of pioneers who integrated the “white” school. This court has the whole concept of affirmative action in its sights. Sorry about the whole slavery thing, and the whole Jim Crow thing, and the whole “separate but equal” thing, and, oh yes, the whole racism thing. That was then, and this is now
If we as a society — black, white, brown, yellow, red — are going to work toward fairness, inclusion, equality and, yes, integration, we’re going to have to do it by working around those dour men in black robes on Capitol Hill. They have decided to stand in the schoolhouse door.
Earlier this year we saw the new radical majority undermine Roe v. Wade (1973) and then women’s rights to pursue discrimination cases. This week also saw an orgy of unrestrained radical activism as the Court undermined the First Amendment’s protection of free speech in the student banner case and protection against government establishing a religion in the faith-based funding case, the latter effectively overruling a 39-year-old decision. What next?
If 30- to 50-year old precedents are not safe, what is? The answer came in a less noticed decision, Leegin v. PSKS, in which the same 5-4 radical majority overturned a 1911 decision, ruling that it was not an automatic violation of the antitrust laws for manufacturers to fix prices and prevent competing retailers from competing by offering price discounts. Now think about applying that principle to gasoline prices and independent gas stations.
One of the foundation principles of the antitrust statutes and the cases interpreting them is that fixing prices is a per se violation of the law. If you fix prices, you’re guilty and you pay huge damages to those harmed by the price fixing; you can’t wiggle out if it. There are few exceptions, because price fixing is so inimical to the whole theory of competition. But this Court held that price fixing to prevent discounts to consumers can be okay, because — wait for it — it may promote competition by protecting competitors from competition! We’re back to case-by-case analyses, where much mischief will occur.
You’d think a true “conservative” court would, in addition to honoring 100-year-old precedents, at least nurture antitrust laws, designed to protect markets from collusion by suppliers or buyers that undermine the benefits of competition. But this court is not “conservative.” It is deeply radical, and it had already proven that with decisions shielding corporations from suits by shareholders and consumers who had been defrauded by illegal corporate mismanagement. Think Enron. Much of the policing of corporate behavior is done by shareholder suits, a form of “self regulation” to back up enforcement by state and federal Attorneys General. But if the Supremes limit such suits, self regulation becomes a hollow deterrent.
In all these cases, the dissents lay out the tortured logic, neglect of precedent and harmful effect on the public interest. But the most radical of the new majority also accused Roberts or Alito of being disingenuous when they claimed they were not overturning precedent when in fact they were. Of course, Scalia and Thomas, who don’t shed tears over stare decisis, would have preferred the new radical majority just explicitly overrule the old precedents, rather than pretend they hadn’t.
We could be in for decades of dreadful decisions from a group of relatively young, committed radicals with little regard for precedent and a mean-spirited view of the Constitution, its Bill of Rights, and the public interest. We should assume no precedent that protects the public interest is safe, no principle of the Constitution that preserves our rights is sacred.
Someone observed after Alito’s confirmation that everything we were taught before about the Constitution and Supreme Court precedents just became inoperative. Or as Stanford Law Professor, Pam Karlan, put it at a meeting of the American Constitutional Society yesterday, “if this is the birth of a new constitutional era . . . what an ugly baby.”
Photo Credit: Storm clouds over Supreme Court, Jonathan Ernst/Reuters.