Eminent Domain

Rick Hasen's Election Law blog has a link to an excellent article by Allison Hayward of George Mason's law school. The article looks at two of this term's major election law cases, Randall v Sorrell and Wisconsin Right to Life v FEC. Hayward looks at how the Court applied the precedent of Buckley v Valeo in these two cases. Is Buckley going to be "superprecedent" in campaign finance cases?

Speaking of "superprecedent", Hayward cites the origin of that term...

The expression "superprecedent" is not new, but its meaning has changed over the years. The initial use of the term appears to be in a 1976 article in which William Landes and Richard Posner speculate about the existence of such precedents. A superprecedent, as they saw it, was "so effective in defining the requirements of the law that it prevents legal disputes from arising in the first place or, if they do arise, induces them to be settled without litigation." They do not provide examples, but one might think of Marbury v. Madison, the Legal Tender Cases or Humphrey's Executor in this light.

I had no idea that the term was that old. Hayward looks at cases that are referred to as being superprecedent, like Roe and Buckley. She thinks that they do not fit the definition exactly, so they probably should not be categorized as such.

Why isn't Buckley superprecedent? Hayward explains...

Buckley lives on because it provided a new rule in a contentious area, and nobody yet seems to be able to come up with something more agreeable. It also lives on by being sufficiently vague and general to support a range of results. If Buckley is to be considered a superprecedent, then perhaps the true test of whether a decision is superprecedent is not whether there has been substantial reliance upon it, or whether it is recent, or whether it settles a question for all time, but whether it can be cited in support of conflicting conclusions.

It was interesting that Chief Justice Roberts signed on to Justice Breyer's plurality opinion in Randall that supported Buckley totally. The other Court conservatives have a mixture of issues with Buckley, including Justice Alito writing separately to say that any petitioner asking for Buckley to be overturned had better devote a chunk of their brief explaining exactly why it has to go. To me, that is a sign that Alito would be willing to overturn Buckley, but he wants someone to make a strong argument for throwing it out. I agree with the idea. Petitioners should explain why they want a case overturned. It's not enough to say "Hey, Justices. Buckley sucks. Let's ditch it, okay?" Make the case for it.

I don't think that Buckley is superprecedent. I also don't think that it will be overturned any time soon. There needs to be a few changes in the make up of the Court before the votes are there to strike it down. If the Chief is not in favor of getting rid of Buckley, we will probably be stuck with it for a while.