No opinion is expressed here on whether the Court savaged precedent in any rulings other than the one discussed repeatedly here, Wisconsin Right to Life.  Yet it appears on the list most observers compile of precedent-shattering cases in the last term.  Undoubtedly it is one of the eight of this kind that Justice Breyer had in mind when he questioned the radicalism of the conservative majority  and, with this remark, grabbed the attention of Senator Arlen Specter.  Specter is taken with Breyer’s comment.  He worries that Congress, promised respect for precedent, was bamboozled.  (Here is the most riveting of spectacles: a seasoned politician professing unease that someone, looking for votes, may have put one over on the electors.)

   But since Justice Breyer is making his stand on precedent, in WRTL among the other cases, it is fair examine a) the place he assigns to precedent in his thought and b) his use of precedent in campaign finance jurisprudence.  In neither case is there any evidence that—on principle, on just the very thought of it—he would be pained by the Court’s treatment of precedent, particularly in WRTL.

   Begin with Breyer’s attention to precedent in Active Liberty(2006): it is fleeting, and precedent never seems a particularly priority among the considerations that the Active Liberty-smitten jurist is guided by.  It is one of many such considerations: text and history and, most importantly, “consequences.”  The “judge who emphasizes consequences, no less than any other, is aware of the legal precedents, rules, standards, practices, and institutional understanding that decision will affect. He or she also takes account of the way in which this system of legally related rules, institutions, and practices affect the world.”  Active Liberty at 118-119.   The judge is “aware” of a decision’s effects on precedent; he “takes account” of the its practical impact on “the world”.   Granted that this could lead, he writes, to a decision “that radically changes the law.”  “But this”, he says of this radical change, “is not always a bad thing.”

   These comments would not make of Breyer the faithful servant of precedent.   But then, this is theory, and the question, especially in considering his inclusion of WRTL as an attack on precedent, is how in this field—in the volatile development of campaign finance law—he has put these thoughts into practice.  His argument is that the Supreme Court in WRTL effectively overruled McConnell v. FEC, decided only 3 and a half years ago.  What did he think of the claim that McConnell, when decided “effectively” overruled Buckley v.Valeo?

   The Justice, when asked about his vote with the majority in McConnell, says nothing about precedent.  In fact, he functionally concedes that precedent was of little account, since the rationale he advances for his vote is a rationale—enforcing equality of voice—expressly ruled out of constitutional bounds by the Buckley Court ( “the concept that government may restrict the speech of some elements of our society in  order to enhance the relative voice of others is wholly foreign to the First Amendment…”  424 US 1, 49).  Yet Justice Breyer brushes Buckley aside on the way to his position in McConnell, explaining his reasoning as follows: 
 

The very point of speech in an election is to get a message across. And that may mean, in part, that you don't want one person's speech, that $20 million giver, to drown out everybody else's. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money.If you accept that at all, you've suddenly bought in to the proposition that there are First Amendment interests on both sides of this equation.

   In short: a rationale of limiting the influence of some in order to enhance that of others, contrary to Buckley.  An effective overruling?  So thought others who read McConnell and understood that it could not be squared with Buckley.

   In the same interview, Justice Breyer is asked:  “How do you, as a justice, decide what's good precedent and what's bad precedent?”  To which he replied by saying:

There are principles that help you decide, because you're quite right in saying no precedent is 100 percent secure, but the more the precedent has been around and the more people rely on it, the more secure it has to be.

Contrast and compare: Buckley in effect for 29 years, or McConnell in effect for three, but Justice Breyer, not quite saying so, voted to rid us of the long standing precedent while now worrying about the short life afforded to WRTL.

   The principal opinion in WRTL does not overrule McConnell.  Or so it states.  Justice Breyer demurs: he believes that the Court majority won’t admit to its dirty work, just as the Court in McConnell would not.  His complaint, more probably, is that the result was not to his taste.  It was a turn away from McConnell and back toward Buckley, and he fears, more than any true harm to precedent, the social “consequences.”

Bob Bauer