Judicial activism

"Judicial activism" is the favorite bugaboo of the right wingers who do not like court decisions that go against their cherished prejudices and special interests, no matter that they usually are merely upholding constitutional rights of citizens.

But now there is a valid claim that, in its decision to remove virtually all controls over corporate money in political campaigns, this court's action was judicial activism of the highest and most egregious order. And it was done by the conservative five on the U. S. Supreme Court -- echoing another conservative act of judicial activism that stopped the Florida vote recount and gave us George W. Bush for 8 years.

So what do we mean by that? The case brought was very narrow: the Court was asked to decide whether lower courts had correctly prohibited the airing of a defamatory movie about Hillary Clinton during the Democratic primary campaign, because it had been produced and promoted by corporate money in violation of the campaign finance laws.

Instead of deciding narrowly on the case brought, the majority (Roberts, Alito, Thomas, Scalia, and Kennedy) expanded the case to address the larger question of whether campaign finance law that regulates corporate contributions in political campaigns is an unconstitutional abridgement of their right to free speech.

This article by Ruth Marcus in Saturday's Washington Post is worth reading. Some excerpts:

In opening the floodgates for corporate money in election campaigns, the Supreme Court did not simply engage in a brazen power grab. It did so in an opinion stunning in its intellectual dishonest. . . .

It was unnecessary for the court to go so far when there were several less-radical grounds available. It was audacious to seize the opportunity to overrule precedents when the parties had not pressed this issue and the lower courts had not considered it. It was the height of activism to usurp the judgments of Congress and state legislatures about how best to prevent corruption of the political process. . . .

As bad as the court's activism, though, was its shoddy scholarship.

First, the majority flung about dark warnings of "censorship" and "banned" speech as if upholding the existing rules would leave corporations and labor unions with no voice in the political process. Untrue. Under federal election law before the Supreme Court demolished it, corporations and labor unions were free to say whatever they wanted about political candidates whenever they wanted to say it. They simply were not permitted to use unlimited general treasury funds to do so. Instead, they were required to use money raised by the political action committees from employees and members. This is hardly banning speech.

Second, in the face of logic and history, the majority acted as if there could be no constitutional distinction between a corporation and a human being. Untrue. . . . The "conceit" of corporate personhood, as Stevens called it [in his dissenting opinion], does not mandate absolute equivalence. That corporations enjoy free-speech protections does not mean they enjoy every protection afforded an actual person. Is a corporation entitled to vote? To run for office?

Third, misreading its precedents and cherry-picking quotations, the majority acted as if the chief case it overturned was an outlier. [She then quotes several cases to disprove this.]

Fourth, the majority bizarrely invoked the "Mr. Smith Goes to Washington" defense. Under the Austin ruling, Justice Anthony M. Kennedy argued, lawmakers unhappy with being lampooned in the movie "could have done more than discourage its distribution -- they could have banned the film." Beyond untrue. There is no scenario under which works of art about fictional lawmakers could be limited by campaign finance laws.

That the majority would stoop to this claim underscores the weakness of its case -- and the audacity of the result it has inflicted on the political process.

And here, from a January 21st article by Dahlia Lithwick in Slate:

[In reading his dissenting opinion, the 89 year old John Paul] Stevens hammers, more than once this morning from the bench on the principle that corporations "are not human beings" and "corporations have no consciences, no beliefs, no feelings, no thoughts, no desires." He insists that "they are not themselves members of 'We the People' by whom and for whom our Constitution was established."

But you can plainly see the weariness in Stevens eyes and hear it in his voice today as he is forced to contend with a legal fiction that has come to life today, a sort of constitutional Frankenstein moment when corporate speech becomes even more compelling than the "voices of the real people" who will be drowned out. Even former Chief Justice William H. Rehnquist once warned that treating corporate spending as the First Amendment equivalent of individual free speech is "to confuse metaphor with reality." Today that metaphor won a very real victory at the Supreme Court. And as a consequence some very real corporations are feeling very, very good.

All Stephens could do was feebly dissent in the face of the apotheosis of the corporate world that the Roberts court has not only embraced but facilitated. What a sad ending to the long career of this noble champion of human rights. I expect to see Stephens' resignation soon. He must feel thoroughly defeated -- as I do.

Ralph