Justice Kagan’s Turnabout on Precedent

• June 28, 2012 • 11:58 am

Meanwhile, Ed Whelan calls our attention to this little chestnut from Justice Kagan’s confirmation hearing:

SENATOR CORNYN: I was–I was pleased to hear you say that, once decided by the Supreme Court, even by a 5-4 margin, that cases like Heller, McDonald, and Citizens United are–are the law of the land and entitled to–entitled to deference by succeeding Courts, even if you may disagree with the outcome. Did I state that correctly?

MS. KAGAN: Yes. Surely. The entire idea of precedent is that you can think a decision is wrong, you can have decided it differently if you had been on the Court when that decision was made, and nonetheless you are bound by that decision.

I do believe that justices can change their minds, and I do believe that precedent is sacrosanct. But remember this little exchange the next time you hear a liberal complain that Citizens United somehow shows that Justice Roberts lied in his confirmation testimony when he promised only to “call balls and strikes.”

So American Tradition Partnership, Inc. v. Bullock makes clear that the Court meant what it (quite correctly) said in Citizens United. It also demonstrates that we are dealing with a block of four liberal judges who hold truly radical views about the First Amendment (it doesn’t protect documentary movies produced or distributed by corporations) who are quite willing and determined to abandon traditional norms – indeed, even the supremacy clause – to get their way.