During his Senate confirmation hearings, soon-to-be Chief Justice John Roberts stressed his belief that the Supreme Court should practice “judicial modesty," a respect for precedent and consensus that he extended all the way to the abortion-affirming Roe v. Wade, a decision Roberts described as "the settled law of the Land."
In his concurrence in yesterday’s landmark free speech case Citizens United v. F.E.C., Roberts elaborated on when it is acceptable for the Court to overturn precedent:
... if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.
In early March, the Supreme Court will have the opportunity to consider another precedent, this time in a case centering on Section One of the 14th Amendment, which reads in part, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” Specifically, the gun rights case McDonald v. Chicago will address “Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.”
For the past century, the Supreme Court has selectively applied the Bill of Rights and other unenumerated rights against state and local governments via the Due Process Clause. Yet the historical evidence overwhelmingly shows that it was the Privileges or Immunities Clause that was written and ratified to protect civil and natural rights against abuse by the states. The Due Process Clause came into play thanks to the Court’s notorious 1873 decision in The Slaughterhouse Cases, which basically eviscerated the Privileges or Immunities Clause. Slaughterhouse has never been overturned.
That’s where Roberts' Citizens United concurrence comes in. If any “precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake,” it’s Slaughterhouse. Robert’s opinion yesterday suggests that it will take more than “judicial modesty” to save this atrocious precedent from the death it so richly deserves.