Friday, January 22, 2010

Judicial Activism

Many today in the Media and the Democratic party are charging the Supreme Court with Judicial activism. In this opinion piece by , 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.


Anonymous said...

1) It was judicial activism. I don't think that a little of that is a bad thing, but you have to recognize (if you've actually read the case... which I doubt) that the Court greatly changed the scope of what was being debated to fit what they were looking to make a statement on. That is, in definition, judicial activism-- changing the case in front of you to make a statement. Both conservatives and liberals have done this in the past, and will in the future. Pointing fingers and saying only one group does this is... well, that's the part where someone is being a fool.

2) You confuse corporations with people. The Bill of Rights exists to protect people-- not corporations. There is a difference; there are many people who have to put on a mask at work. Beyond this, though, we DO expect there to be certain laws of speech and press. Otherwise I could put up my money to run a paper in your hometown that said your family was filled with incestuous demons, or drop by your local movie theater and run through it screaming "the building's on fire!" Thankfully you and I are both protected against such "speech". You may love gas companies and want them to be able to spend billions of dollars so they can "drill baby, drill"-- but this means that in the future ANY fight on the public stage that is person against corporation, the game is rigged. Because now speech equates to money. So bring on the senator from WalMart... because your voice is never going to be loud enough to be heard again.

Howard Fisher said...

1) "changing the case in front of you to make a statement."

I have no doubt that occurs, and I am not certain how that is avoided totally. Lawyers go to court and come up with all kinds of plans to win, and not necessarily argue the actual case. That is why I think that when the question that was posed, "What has changed...?", that is where the problems lie. So I would agree to some extent.

Nevertheless, the Act under dispute was dismantled and rightly so.

McCain was wrong for writing it. George Bush was wrong for signing it into law. And the Act itself is wrong.

2) "You confuse corporations with people. The Bill of Rights exists to protect people-- not corporations."

I simply reject this. We will just have to disagree fundamentally here. I see no evidence that the Framers would have only in mind individuals and not the very groups of people that would fund their getting to write the First Amendment in the first place (Which obviously included the state governments).

3) "Beyond this, though, we DO expect there to be certain laws of speech and press."

Of course. That is why I was referencing political speech. Obviously there are laws against libel and your other examples. Nobody is arguing that.

4) "but this means that in the future ANY fight on the public stage that is person against corporation, the game is rigged."

McCain Feingold does absolutle nothing to solve this. All it did was make groups of people to have to come up with new ways to be sneaky (this was part of the discussion with the Justices). Plus I would argue that this Act actually helps keep incumbents in office by giving them the financial advantage.

I couldn't give a rip if one person can't defeat a group of people in raising money. If your ideas have merit, then bust your but to persuade others. One pickup truck owner from Massachusetts just did.

The solution to "even the playing field" is not to do the unconstitutional thing by bringing down giants. That just makes everyone equally miserable. The real American ideal is equal opportunity, not equal outcome, which never has equal outcome anyway because by definition, equal outcomes are "rigged".

Howard Fisher said...

"You confuse corporations with people. The Bill of Rights exists to protect people-- not corporations."

I just have to ask, "Does Walmart have to testify against itself in a court of law?"

Does Walmart not have the right to fight against unlawful search and seizure?

Would a local organization such as a Boys Club not have the right to defend itself as any private citizen? Could they be denied the right to a speedy trial?

I am sorry, I just can't see your viewpoint standing up here. The Bill of Rights protects us all.

This includes the Press, which are usually organizations and corporations.

Howard Fisher said...

I thought this paragraph was interesting.

"(a) Although the First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech,” §441b’s prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy—it is the means to hold officials ac-countable to the people—political speech must prevail against laws that would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S., at 464. This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints or to distinguish among different speakers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in the political speech context, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead to this conclusion."

Logical indeed!

Howard Fisher said...

They also argued by precedent no less that the Bill of Rights do apply to Corporations.

"(b) The Court has recognized that the First Amendment applies to corporations, e.g., First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 778, n. 14, and extended this protection to the context of political speech, see, e.g., NAACP v. Button, 371 U. S. 415, 428–429. Addressing challenges to the Federal Election Campaign Act of"

RichardS said...

At times judicial activism is simply when the court disagrees with my position.

As Howard noted about lawyers seeking ways to win, this is nothing more than the ancient version of being a sophist. You tried to figure out ways to win rather than ways to find out what the truth was or the just way to proceed on. In other words, we no longer have a justice system in place that is very solid at all. Lawyers want to win rather than search out the truth. When the Supreme Court makes a decision based on the Constitution, at least one side does not get what it wants and so it is perceived as judicial activism. The Supreme Court is now perceived as nothing more than a body of judges that is to give us the rights we want.

Obama has been ripping the Constitution to shreds with his actions. Let us hope that the Supreme Court can stop being so policitally motivated and actually go by the Constitution that it is sworn to uphold.