Sunday, January 24, 2010

No Activist Judges !? Hrmph !

"No activist judges!" That has been the refrain from the far right, from the "conservative" talk radio and Fox TV hosts, and the politicians they embrace. Well, we now have a U.S. Supreme Court with a Chief Justice and a majority that is favored by these "more moral than you" types, and this week that high court brought us one of the most revisionist decisions in decades.
Not content with the issue before them, they continued to broaden the scope of the complaint until it allowed them to override enough precedents to establish the law in the manner in which they saw fit. Don't take my word for it, Justice J. Stevens, in his dissenting opinion, writes, "Our colleagues’ suggestion that 'we are asked to reconsider Austin and, in effect, McConnell,' ante, at 1, would be more accurate if rephrased to state that 'we have asked ourselves' to reconsider those cases."

(Since some of you may be wondering which decision I'm referring to, it's "CITIZENS UNITED v. FEDERAL ELECTION COMMISSION", decided Jan. 21, 2010. The effect will be to remove electioneering restrictions on corporations, i.e. they'll be able to spend as much money as they want, as close to election date as they want, directly in favor or against candidates.)

Both the decision, and the opinions are available on line, and are surprising readable. In fact I was a bit surprised by the informality of some of the language. The decision repeatedly uses the expression "chilling effect" and variations there on, to refer to the law's impact on political speech. The crux of the majority's argument is that free speech applies to corporations (and unions, etc.) just as much as to real persons. I disagree; Justice J. Stevens argues this nicely: "The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its 'identity' as a corporation. While that glittering generality has rhetorical appeal, it is not a correct statement of the law. ... In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters."

Justice J. Stevens goes on to present a laundry list of precedents, some dating back a hundred years, that the court has overturned with this ruling, in violation of the principal of stare decisis, i.e. making rulings based on prior decisions. Maybe the "more moral than you" crowd will now change their mind about judicial activism, they certainly have changed it about whether it's okay to criticize a sitting President. I guess there's no reason not to be hypocritical about the third branch of our federal government. Sigh.

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