I don't understand the basis for saying that the Breyer opinion makes Buckley a "super-precedent."  Perhaps that is no surprise, because the super-precedent idea seems so bizarre to me in the first place.  But what is the basis for it in Breyer's opinion?  The relevant section (II.B.2, joined only by Roberts) consists of two paragraphs.  In the first paragraph, Breyer talks generally about the desirability of stare decisis, which "avoids the instability and unfairness that accompany disruption of settled legal expectations."  That and the following sentences do nothing to distinguish Buckley from any other precedent.  The only sentence that does is the last sentence of that paragraph: "This is especially true where, as here, the principle has become settled through iteration and reiteration over a long period of time."  The following paragraph elaborates on the proposition that there is no "special justification" for overruling Buckley.
 
        The sentence quoted above is a thin reed for calling Buckley a super-precedent.  If it had occurred in any Supreme Court decision prior to last year's Senate hearings in the Roberts and Alito confirmations, I do not think it would have attracted the slightest notice.
 
         I expressed some other thoughts about the decision in the conference call this morning (in California, that is!) and will not repeat them here.  I hope that the call will be made generally available, one way or another.  Present company excepted, the commentators had a lot of interesting things to say.
 
 
          Best,
 
          Daniel Lowenstein
          UCLA Law School
          405 Hilgard
          Los Angeles, California 90095-1476
          310-825-5148

________________________________

From: owner-election-law_gl@majordomo.lls.edu on behalf of FredWooch@aol.com
Sent: Mon 6/26/2006 3:50 PM
To: TP@capdale.com; foley.33@osu.edu; Rick.Hasen@lls.edu; election-law@majordomo.lls.edu
Subject: Re: Some Initial Thoughts on the Vermont Campaign Finance Decision


In a message dated 6/26/2006 3:40:51 P.M. Pacific Daylight Time, TP@Capdale.com writes:

	Roberts even signed on to the paen to Buckley as a "super precedent" (viz Sen. Specter) contained in the Section Alito did NOT join

I know this is the election law list-serve, but on an off-topic issue that may be of concern to many anyway, does anyone else think there is some significance for the future of Roe v. Wade in the fact that Roberts was willing to sign onto an opinion giving greater precedential force to a "super precedent" (as he had indicated he might in his confirmation hearings), whereas Alito refused to sign that opinion and instead seemed to set himself up for the option of overruling a prior precedent where the challenge is made head-on and sufficient grounds are argued for doing so (which is consistent with his refusal to accept the "super precedent" theory in his confirmation hearings)? 
 
Fredric D. Woocher
Strumwasser & Woocher LLP
(310) 576-1233
fwoocher@strumwooch.com