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The Honolulu Advertiser
Posted on: Monday, January 25, 2010

So much for judicial restraint

By Erwin Chemerinsky

Hawaii news photo - The Honolulu Advertiser

Samuel A. Alito Jr

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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.

Since Richard Nixon ran for president in 1968, a central feature of Republican and conservative rhetoric has been to attack judicial activism. The phrase is never defined with any precision and has often been used to refer to decisions that conservatives simply don't like. But if judicial activism has any meaning, it surely refers to decisions that overturn laws and overrule precedents. In contrast, judicial restraint occurs when courts defer to the other branches of government and follow precedents.

To conservatives, though, the phrase "judicial activism" has come to mean any decision with a liberal outcome. President George W. Bush declared: "The judges ought not to take the place of the legislative branch of government. ... I don't believe in liberal activist judges. I believe in strict constructionists."

The 2008 Republican platform declared that "(j)udicial activism is a grave threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the Constitution and its separation of powers, and imposing their personal opinions upon the public."

The court's campaign finance decision makes this conservative rhetoric laughable. The ruling, which grew out of a conservative nonprofit corporation's attempt to air an anti-Hillary Rodham Clinton documentary during the 2008 primary, throws out a key component of the 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.

McCain-Feingold was a continuation of statutes that have existed since 1906 limiting corporate spending in federal election campaigns. The act was intended to prevent the enormous wealth of corporations from distorting elections and protect corporate shareholders from having their money used for purposes with which they disagree.

For years, conservatives have argued that judicial restraint requires deferring to the choices of the elected branches of government. No such deference was evident when the court's five most conservative justices struck down this provision of the McCain-Feingold law on Thursday.

Nor did the decision defer to judicial precedent. In 2003, in McConnell v. Federal Election Commission, the Supreme Court in a 5-4 decision upheld this same law. In fact, in an earlier case in 1990, the court said that legislatures may restrict corporate spending in election campaigns. The court's decision on Thursday expressly overruled these decisions.

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.

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 v. Wade. But there is not the slightest shred of evidence that the framers of the First Amendment meant to protect the rights of corporations to spend money in election campaigns. The conservatives were glad to abandon the [0x1c]original meaning[0x1d] when it served their purposes.

The conservative majority, which in recent years has dramatically limited free speech in other areas such as for government employees and for students was willing to expand the free speech of corporations. There is no way to see this other than as the conservative justices using judicial review to advance the traditional conservative ideological agenda.