Somewhere along the line, right wingers stopped complaining about "New Deal judges"--presumably because an actual FDR-appointed judiciary had largely passed from the scene--and began assailing "activist judges" instead. There was a certain logic to it; by 1968, the appointment power had been in liberal hands for
20 28 of the previous 28 36 years, and therefore, any judicial activism on display was likely to have been liberal activism.
But it was also a canard, an attempt to hide an ideological grievance behind something abstract and ostensibly principled rather than purely political. It was put most baldly, and most disingenuously, by John McCain during the 2008 presidential campaign, who claimed he would appoint judges "who apply the law rather than make it."
Of course the idea is absurd on its face. If all that's required of judges is the impartial application of unambiguous law to relevant fact, we'd barely need them at all, except to keep order in the courtroom. Cases are litigated precisely because the law is subject to divergent interpretations. It's sometimes politically convenient to disparage the act of interpretation as "legislating from the bench," but for appellate courts, interpretation is a professional necessity. It's why they're there. It's what they do.
Besides, activism is hardly limited to liberals. The Rehnquist Court and the Roberts Court have been every bit as activist as the Warren Court. Anyone who maintains that Bush v. Gore was a demonstration of judicial restraint is clearly living in a dream world. Simply granting cert was arguably indefensible, and the judgment itself was the single most appalling act of judicial usurpation in American history.
And when we speak of the activism of the admittedly activist Warren Court, what decisions come to mind? Brown. Gideon. Miranda. Reynolds. Sullivan. I'm sure there are still circles in which these are regarded as dubious or controversial, but only on the fringes; they have largely been absorbed into the mainstream of American political thinking. (Even most police departments now cheerfully embrace Miranda.) And the tendency of those decisions was always to extend civil rights, broadly defined, as widely as possible. It was activism in pursuit not so much of liberalism as democracy.
The activism of the current court has a very different tendency. And nowhere is this more evident than in the recent decision, Citizens United v. Federal Elections Commission. Of its activism, there can be no doubt; the decision overtly reverses the recent Austin ruling, and is in patent conflict with two other relatively recent rulings, Beaumont and McConnell. And the clear consequence of the decision (clear, although denied, explicitly and absurdly, in the text of Justice Kennedy's decision) will be to distort political discourse and corrupt the political process. (Mind you, anyone reading the decision might come away with the impression that it merely attempts to remedy the pitiable, inequitable, longstanding social and political impotence of major corporations.)
Justice Kennedy argues that any limitation on political advocacy by corporations is a form of censorship. This is nonsense; no officer or shareholder of a corporation is prevented from expressing his views or donating his money to the extent permitted any other citizen. But the corrupting influence of money on politics is self-evident--does anyone doubt that insurance companies will generously finance opponents of health care reform, or that oil companies will do something similar with respect to environmental legislation, or that President Obama's banking regulation plans will now face a steeper uphill slog?--and in addition, granting unlimited rights to corporations to spend money on behalf of specific political candidates is manifestly undemocratic; it's premised on the peculiar notion that money is speech and, as a corollary, that those with more money have the right to more and louder speech.
It's been said that during America's Gilded Age at the end of the 19th century and the beginning of the 20th, the minions of the robber barons would literally deposit sacks of cash on the desks of friendly legislators. In the wake of this grotesque recent Supreme Court decision, there is no longer any need for the cash to be put in sacks. There's nothing that needs to be hidden anymore. Citizens United doesn't just enable corruption, it legalizes and legitimizes it.
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