Private: Reactions to McCutcheon from a Law Student

 

I am very concerned about the Court’s decision in McCutcheon v. FEC, though perhaps not for the reasons you’d think. I will leave it to others to be concerned that the Court is moving toward a system in which the richest among us have significantly louder political speech than the rest of the country; I won’t even lament the irony of the Chief Justice’s opening line acknowledging that “[t]here is no right more basic in our democracy than the right to participate in electing our political leaders,” when juxtaposed with the Shelby County opinion from last term. I won’t comment, as Ari Berman eloquently has in The Nation, on the Court’s disturbing trend toward “More Money, Less Voting.” My concern right now is more selfish—I’m concerned because I’m a second year law student, exams are a few weeks away, and the Chief Justice has fundamentally confounded my understanding of stare decisis.

 

In McCutcheon, the Court struck down aggregate spending limits imposed by the Federal Election Campaign Act (FECA). This is a conclusion that would seem to require overruling the Court’s decision in Buckley v. Valeo upholding that very same provision. And yet the Court did not go through the “prudential and pragmatic considerations” announced in Planned Parenthood of Southeastern Pennsylvania v. Casey, when deciding whether to overrule precedent. In Casey, in which the Court refused to overturn Roe v. Wade, the Court stressed the importance of precedent in our Constitutional system: “Indeed, the very concept of the rule of law under our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.” And yet we see none of this respect for continuity or the rule of law in the Chief Justice’s decision to override the aggregate limit holding in Buckley.

 

Instead, the Court notes that Buckley’s holding on the issue was only three sentences long, was not “‘separately addressed at length by the parties,’” and thus “does not control here.” The Chief Justice points to two other cases in which the Court has not felt bound by what the Chief basically characterizes as sloppy decision-making: Toucey v. New York Life Ins. Co and Hohn v. United States. Yet both of those cases dealt with procedural issues that the Court stressed did not alter primary conduct—a situation thought by some to carry less precedential weight. McCutcheon’s invalidation of aggregate political contribution limits will undoubtedly alter primary conduct and thus deserves more precedential respect.

 

The Chief Justice has left me in a tough spot, one month before my final exams, because I no longer know what constitutes binding precedent. Is the Chief Justice saying that a one-paragraph discussion cannot constitute a holding? Is it that the disposition of constitutional objections took only three sentences? On my Antidiscrimination Law exam, is it fair to cite Phillips v. Martin Marietta Corp., which held in a matter of six sentences that Title VII prohibits hiring men with small children while “not accepting job applications from women with pre-school-age children” as binding precedent? When I teach my TA session on Brown v. Board of Education, is it fair to say that the Court’s series of per curiam opinions summarily banning racial segregation in public beaches and bathhouses, municipal golf courses, and auditoriums are still good law?

 

Alternatively, is the Chief Justice troubled because the aggregate limit holding in Buckley was one paragraph out of a 139-page opinion? While this issue may not jumble civil rights law the way invalidating a holding for its length alone would, it raises serious issues for me as a student. When reading for class, do I now have to compare the entire length of the opinion with the length of the particular holding at issue to know whether it is binding precedent? This could raise serious problems given that law textbooks uniformly edit opinions; students don’t know how long the entire opinion is and therefore can’t effectively compare the length of a particular holding to the entire case. Will professors now have to start assigning opinions in their entirety in order to give students a context from which to extrapolate whether short treatment of a subject constitutes a holding in the context of the overall length of the piece?

 

Or is the Chief Justice’s concern with the fact that the constitutionality of the aggregate limit “‘ha[d] not been separately addressed at length by the parties’”? Under this conception, Erie v. Tompkins and Mapp v. Ohio are of questionable precedential value. The constitutional questions involved in Erie, one of the most influential civil procedure cases in the history of United States jurisprudence, were not briefed by either party, something that Justice Butler laments in his dissent. In the Chief’s opinion, is Erie not good law? That should be a relief to next year’s 1Ls who won’t have to learn the Erie formulae, but may prove disastrous to civil procedure as we know it.  Mapp, which extended the Fourth Amendment exclusionary rule to the states, overruled precedent in Wolf v. Colorado without briefing by either party on the issue, as Justice Harlan notes in dissent. Perhaps criminal lawyers should be on notice, after McCutcheon, that the exclusionary rule does not apply in state court. And let us not forget the most famous instance of the Court reaching a Constitutional issue of immense magnitude without briefing by the parties: Marbury v. Madison. Mr. Chief Justice, have you just undermined the opinion that first acknowledged the legitimacy of judicial review?

 

Even if the Chief Justice has not in fact undermined Marbury, he has certainly undermined his own Court today. As Casey made clear, the rule of law depends upon continuity in the Court’s jurisprudence; overruling precedent is not to be undertaken lightly. Undermining precedent and declining to engage in the Court’s detailed and soul-searching stare decisis analysis, as the Chief Justice did in McCutcheon, is sneaky and undermines the Court’s legitimacy. If the Chief Justice won’t hold the Court to its own values, who will?