Conservatives embrace judicial activism in campaign finance ruling
The Supreme Court's decision in favor of corporate spending in elections makes previous rhetoric laughable.
By Erwin Chemerinsky
January 22, 2010
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.
By this definition, judicial activism can be good or bad. Brown vs. Board of Education was activist in that it declared unconstitutional laws in many states requiring the segregation of the races in education. To do so, the justices overruled a 58-year-old precedent upholding such laws. But virtually all agree today that Brown was one of the greatest moments in Supreme Court history.
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 vs. 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 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.
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.
Almost 10 years ago, in Bush vs. Gore, the five conservative justices for the first time decided a presidential election. One would have thought that decision would have laid to rest the notion that judicial activism is a tool of liberal judges and revealed that the real judicial activism today is from the right. Perhaps Thursday's decision will finally reveal the truth.
Erwin Chemerinsky is dean of the UC Irvine School of Law.