We do not argue that precedent must be worshiped and upheld at all costs. If that were the case, as Justice Roberts noted, segregation would still be legal and minimum-wage laws unconstitutional. But when the Brown v. Board of Education decision in 1954 overturned Plessy v. Ferguson from 1896 and outlawed segregation, it came after many years of relentless legal efforts against Jim Crow by Thurgood Marshall and many others. It was clear that the legal landscape was changing.

When the Roberts court overruled precedent in the Citizens United case, it did so far more abruptly. The dissenters, led by Justice John Paul Stevens, said the majority “blazes through our precedents” in a “dramatic break from our past.” It was nothing other than judicial activism when the court five months later stepped directly into the gubernatorial race in Arizona, cutting off matching funds to candidates participating in the state’s campaign finance system. The message to other states and cities with similar systems was clear: Watch out. When the Roberts court has a goal in mind, niceties like an actual political campaign cannot be allowed to get in the way.

This tack is a nonstarter (just insert "Warren court" for "Roberts court" to see that these arguments go nowhere). To really challenge Roberts' jurisprudence, you can't just make tortured arguments about conditions when precedent can be overturned - you need to be willing to say clearly Roberts' judicial worldview is normatively undesirable, and that we need judges with a different worldview. This is not an engineering problem - it's about moral worldviews.

-- DevinMcDougall - 05 Jul 2010