Judicial Activism

Many today in the Media and the Democratic party are charging the Supreme Court with Judicial activism. In this opinion piece by Erwin Chemerinsky, he offers what many are saying.

The Supreme Court's 5-4 decision holding that corporations and unions can spend unlimited amounts of money in election campaigns is a stunning example of judicial activism by its five most conservative justices. In striking down a federal statute and explicitly overturning prior decisions, the court has changed the nature of elections in the United States. At the same time, the conservative justices have demonstrated that decades of conservative criticism of judicial activism was nonsense. Conservative justices are happy to be activists when it serves their ideological agenda.

The book of Proverbs states,

⁴ Do not answer a fool according to his folly,

or you will be like him yourself.

⁵ Answer a fool according to his folly,
or he will be wise in his own eyes.

1) First I'd like to grant the false premise that this decision was in fact judicial activism. Why are they upset about it? Did any of these people complain about judicial activism when the Supreme Court made one of the worst decision in American jurisprudence in Roe v. Wade? Nope! Did any of these people think the Supreme Court had abdicated its Constitutional role when the court decided to become a "national school board" by making constant decisions in local school and state matters?

For the Political Left to cry foul is to show their true colors. They only like judicial activism when they are in power. This is why they seek to institutionalize liberalism and to never allow conservatives in positions of authority. That is what the so-called "bail outs" were about. That is what welfare is about. That is what public school is about. That is what health care is about. Ect Ect.. Having the tables turned is never fair play with the Left.

2) I reject the false premise that this is judicial activism. I should only need to cite the First Amendment which plainly states, "Congress shall make no law...." There it is folks. Conservatives win hands down. No more needs to be said. Common sense can read and understand what this says and means.

But for those that can not read, it says "Congress shall make no law". This means that Congress may not pass a law that restricts political speech. Notice this statement in the opinion piece cited above.

...McCain-Feingold Bipartisan Campaign Reform Act of 2002. Among other things, the law banned corporations from paying to broadcast "electioneering communications" for or against candidates in the final weeks of presidential primaries and general elections.

Why should it be wrong to campaign for and promote a candidate or a political idea? If any person or group of people may campaign 6 months prior to an election, how does congress appropriate to itself the power to restrict free speech days prior?

The fact that this is a major decision that goes against much of what has been done since "1906" is irrelevant. It only means that the Congress has been violating the Constitution for that length of time. For instance this exchange during the arguments took place according to the NYTimes,

Justice Samuel A. Alito Jr. asked, for instance, whether a campaign biography in book form could be banned. Mr. Stewart said yes, so long as it was paid for with a corporation’s general treasury money, as opposed to its political action committee.

“That’s pretty incredible,” Justice Alito said.

This is the logical conclusion of violating the First Amendment. If you can take it away from person, then everyone is in danger. Therefore the charge that this is judicial activism is plainly false. The Constitution won, and the Left lost.

Chemerinsky does ask,

What changed over the last eight years? In the 2003 decision, Justice Sandra Day O'Connor joined with John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer to make up the majority. O'Connor's replacement, Samuel A. Alito Jr. voted the other way and joined with conservatives John G. Roberts Jr., Antonin Scalia, Anthony M. Kennedy and Clarence Thomas to declare the same law unconstitutional.

Kind of strange twisted logic. If the court had the current make up then that it has now, would it have been activism? Perhaps the current court can read that simple phrase, "Congress shall make no law..."

The strongest argument comes in this paragraph,

For decades, conservatives have argued that judicial restraint requires that courts protect rights only if they are stated in the text of the Constitution or were clearly intended by the document's framers. This, for example, is the core of the conservative attack on Roe vs. Wade. But there is not the slightest shred of evidence that the framers of the 1st Amendment meant to protect the rights of corporations to spend money in election campaigns. The conservatives were glad to abandon the "original meaning" when it served their purposes.

This is just plain false. Everyone (I assume everyone since I know it, therefore everyone else must) knows that coporations have always been defined as "persons" according to the rule of law. This is so basic that courts even recognize marriages as one person.

I also doubt he really believes this. He is not about to abandon Roe v. Wade is he? Roe v Wade is clearly an activist decision. There is noting about women's privacy to murder babies. Yet the First Amendment is quite clear. Term switching doesn't change the reality that Congress has made a law that contradicts the plain statement of the Constitution.