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
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.
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.
Photo credit: Ken Hammond/Wikimedia Commons