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OpEdNews Op Eds    H2'ed 2/21/10

The Supreme Court 5 Insist They Were Right All Along ... Far, Far, Extreme, Off The Deep End Right

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This is the 5th installment of our legal analysis of the various inexcusable errors in the EDICT by five Supreme Court wolves to rip apart limits on corporate influence on the people's elections.

And we don't mind telling you we still have quite a slog to go yet. So if you are getting the impression that some law school could build an entire semester's lecture course around EVERYTHING that is wrong with this case, as a text book example of bad legal work, it is because they could.

We have already covered what an abortion on the facts the decision was in so many ways. Based on this foundation of factual smoke, Kennedy, writing for the Supreme Court 5 (including also Roberts, Alito, Scalia and Thomas), then proceeds to build his castle of the preposterous by committing every sin of legal case precedent citation possible.

To help you understand what is really going on here, first we must explain the concept of "weight". Simply put, when reviewing the language of previous case precedents, which are presumed to be binding on all court decisions to follow at the same court level or lower, all words in a decision are not equal.

The greatest weight, indeed the only thing that is SUPPOSED to be followed, is given to the essential heart of the decision itself, the key language that explains the logical basis for what the court actually ordered, the WHY of what they in fact did. This is known as the essential "holding". This is what is meant by a "controlling" opinion, the whole basis of stare decisis.

Elsewhere in an opinion a court may comment on other matters, perhaps to suggest they might have been open to arguments that could have been made but were not, perhaps to indicate they were expressly NOT ruling on a particular alternate basis, footnotes of tangential interest, or whatever. Since the actual decision did not turn on any of these things, this is what is generally known as "dicta", the judicial equivalent of shooting their mouths off. "Dicta" is not binding on any later court decision, so while it may be referred to in a later decision as context for the state of mind of members of a previous court in a prior case, it has much less weight than the "holding".

Finally, there may be separate opinions by individual or smaller groups of justices either concurring (agreeing with the majority on some part of the holding but amplifying with additional reasons NOT endorsed by the majority) or dissenting (disagreeing with the reasoning of the majority holding).

Of all these things, whatever is found in a dissenting opinion carries the LEAST weight of all as far as a later court should be concerned. This would be the opinion of the side that LOST, the minority, the side that would not join the majority that carried the decision, the judicial equivalent of griping.

And yet, this entire decision, which every person capable of critical thinking is so upset about, is riddled with references to, and fundamentally based on, dissents and other divergent minority opinions mostly by the Gang of 5 themselves. (opinion pp. 11, 15, 16, 22, 26, 27, 28, 29, 31, 33, 35, 36, 37, 38, 40, 44, 46, 47, 49). Often these dissents are deceptively not even identified as "dissent", listed only labeled as "opinion" in Kennedy's new logical hatchet job. Moreover, many were the dissents in the very cases that this new decision now so rudely presumes to overturn.

And Kennedy has the utter unabashed gall to conclude his compilation of basically his own dissents and those of his cronies to state, "For the reasons stated above, it must be concluded that Austin was not well reasoned". (opinion p. 47) But all he's REALLY saying is that they were right all along, as they turn the whole concept of judicial precedent completely on its head.

Well, in a sense they WERE "right" all along ... far, far, extreme, off the deep end right. And the obvious danger now is that having finally executed their long plotted judicial palace coup (three of them dissented in 2007 in the WRTL case that they should have done it then, but perhaps Roberts and Alito, still new on the bench, feared the political uproar that has in fact resulted now), now suddenly you can be sure that this decision will be elevated by them to the most sacred stare decisis precedent that ever was.

If a first year law student turned in a piece of work like this, cobbled together as it is from dissents, and dicta from stray footnotes (for example opinion p. 25), from other cases, they would earn nothing but a dismissive scowl from their professor. Unfortunately these five incorrigible men are now Supreme Court justices, until the people act to remove them.

Oh, but it gets so much worse, for even where Kennedy does cite from controlling opinions he dishonestly twists and misconstrues their actual holdings. For that, he would have been, and should be expelled. But for that analysis, we will have to keep you in suspense a little while until the 6th scary episode in this series coming soon to an email inbox near you.

In the meantime, a major poll released just yesterday by the Washington Post reports 80 percent of all Americans, crossing all party lines, are opposed to this indefensible ruling (65% STRONGLY opposed). Now it is our job to mobilize all those people to take real action to reverse it as a practical reality. In the first instance there must be congressional legislation (already in process) to mitigate the damage to our Constitution in the short term, while we are working on the optimum repudiating constitutional amendment as the direct long term cure.

Here's a short list of things YOU can do right now to help build the visibility of this movement:

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