Wednesday, October 6, 2010

Why Conservatives should hate Citizens United - or Why Those Gosh-Darn Activist Judges is Ruinin' the Country

First off, for all I know Conservatives already do hate SCOTUS's decision in Citizens United vs. FEC. If you're a conservative and you disagree with the court on this one, then congrats, you're in good company.

If there is such a thing as Judicial Activism (judges overstepping the bounds of their authority in order to change the law with far reaching political and social consequences) then this is a clear-cut case. So if you're that guy, who is always harping on how judicial activism is ruining the country, then this decision had better loom large in your view of mistakes made by the US Supreme Court.

You see the way the Supreme Court was designed - as an appellate system - limits the scope and power of Supreme Court decisions, insofar as the Supreme Court can only exercise their power if a question of constitutionality is brought before them by another party. This important check on the Judiciary which is built into our constitutional system serves to help prevent so-called "activist" judges from interfering too often in the process of law-making. Unlike Congress, the judiciary doesn't have general law-making power and can't just change the law whenever they choose. Regardless of the constitutionality of any law or set of law, SCOTUS can only change law through judicial review if the problem is large enough to percolate all the way up the appellate process without fizzling out in one of the many appellate courts. If a constitutional question never reaches them, then no big deal, the popular will expressed through the US Legislature holds. This system seems to work pretty well for the most part.

This is why the decision rendered in Citizens United, which ruled that large portions of the Bipartisan Campaign Reform Act are unconstitutional, is so problematic. The question of the facial constitutionality of the controlling provisions in the Bipartisan Campaign Reform Act was never raised by the claimants before the court. The question that Citizens United brought to the court was merely whether their instance of Video on Demand electioneering, funded 99% by non-corporate donors, should be subject to the same regulation as TV and radio electioneering, payed for directly by corporations. A decision which could have been decided quite easily and modestly without having to resort to overturning nearly two-hundred years of case law in clear violation of the logic of stare decisis.

However, the court didn't like being limited to this rather small role, merely determining how Video on Demand, the latest in an ongoing wave of new media formats, fits in with years of First Amendment jurisprudence. Apparently, they had an itch to exercise some power; Maybe a bone to pick with McCain/Feingold. So instead of accepting their proscribed role in rendering a decision, they went out of their way to invite the claimants back to the court in order to argue the question of the Acts unconstitutionality on face. Such invitations by the court are rare and this was a bold move on the part of the Roberts court in clear violation of the conservative ideal of judicial constraint. Therefore, Roberts = activist judge.

In his dissent Justice Stevens explains:

"It is 'only in the most exceptional cases' that we will consider issues outside the questions presented, Stone v. Powell , 428 U. S. 465, 481, n. 15 (1976)... Setting the case for reargument was a constructive step, but it did not cure this fundamental problem. Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law."

So for the record, if you are "that guy", harping on activist judges, it ain't just the "liberals" you've got to blame. In fact the original judicial activists were free-market conservatives who severely undermined the intended meaning of the civil rights amendments in the slaughter-house cases at the turn of twentieth century; by re-interpreting "privileges and immunities" guaranteed to citizens, the sweeping and far-reaching post-cataclysmic amendments intended as memorial to the sacrifice of Lincoln, and millions of slaves and soldiers, as only having application to travel visas and port policy. These are the sorry predecessors to the modern day Roberts' Court - who have now made into law the ridiculous claim that a corporation is a person with the same constitutional protections as you or me.

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