Case of judicial activism v. judicial modesty? 
January 28, 2010 by Husna Najand
Conservative Supreme Court takes a bite out of activism
Typically, the more ideologically conservative members of the Supreme Court praise the use of judicial modesty in decision-making, reminding themselves that they are not the law-making branch of the government, and as such, it is their duty to interpret the law according to the original intent, if not the literal word, of the Constitution.
Times have apparently changed, as five self-proclaimed strict constructionists decided they would change their stripes and give judicial activism a try after all.
In a historic 5-4 decision last Thursday, those members participated in gross judicial overreach by claiming that corporations have the right to use their general treasuries to fund television and other media ads in supporting or attacking a candidate.
Furthermore, they can also run such ads during the crucial days leading up elections, which was previously prohibited.
Thus, they struck down key provisions of the 2002 McCain-Feingold law in addition to overturning decades of legal precedent governing campaign finance laws.
You might wonder, what was the rationale behind this decision?
Apparently, the “government may not suppress political speech on the basis of the speaker’s corporate identity,” Justice Anthony Kennedy conveyed in reading the majority opinion.
The court de facto determined that political speech also encompasses undue influence over elections, seeing as how corporations have access to obscenely large sums of money.
Kennedy continued that, “The First Amendment does not permit Congress to make… categorical distinctions based on the corporate identity of the speaker and the content of the political speech.”
The Supreme Court effectively ruled that free speech is exactly the same for corporations as it is for you and me.
Essentially, they went beyond the scope of the Constitution’s literal words to include what groups they thought should have the same rights.
This is blatant hypocrisy.
They grievously complain about judicial activism and making laws from the bench, but with their conservative majority went grossly beyond the words of the Constitution to the point of distorting the original meaning and intent of free speech, there was not an iota of judicial restraint present in this misguided ruling.
Judicial modesty ascribes to typically sticking with precedent.
This is not Brown v. Board of Education where civil rights were being so disgustingly denied and precedent was crying to be overturned. This is not Tinker v. Des Moines, in which political expression in a school setting was being questioned.
This calamitous decision overturned decades of precedent, including the reversal of the court’s own ruling in 1990 that held that general treasuries could not be used to fund political campaign ads.
The court uprooted the presuppositions of equal influence in the political process. This is an example of judicial overreach at its worst, especially since the aftermath will reverberate in every aspect of democratic life since democracy rests on the premise of free and fair elections.
How free and fair is it when corporations have an even larger influence in the process than ever before?
The most offensive display of judicial overreach is reflected in the reinterpretation of the constitutional meaning of free speech.
Campaign finance is like the netherworld of the political realm, with a plethora of corporate and union interests having undue influence on elections and how congressmen vote.
Campaign finance laws limiting corporate influence are not abridgements of free speech, as the majority ruling claimed. Rather, they are guidelines for at least making an attempt at maintaining a semi-fair playing field in what is clearly an unequal one.
“While American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics,” Justice Stevens stressed during his 20-minute dissent.
At least it’s an attempt, however precarious it may be, at retaining a shred of integrity in an age of cynicism.
This has, in no way, clashed with the historic understanding of free speech observed since the inception of the First Amendment and throughout centuries of court rulings and state legislations.
The point of freedom of speech being constitutionally protected under the First Amendment was to ensure that the people have the right to express their thoughts and opinions in public without fear of political repercussion – basically, the right to speak openly without censorship.
Are corporations really “censored” because they can’t air ads in the days leading up to an election in order to fend off the influence of false claims? As we all know, campaign ads are dirty and a chock full of misinformation, be they from Republicans or Democrats.
Thanks to the court’s new found sense of activism, the fine line between financially supporting a candidate via free speech and electioneering have been drastically blurred.
Exacerbating the ridiculous nature of majority opinion, Stevens said, “That Congress must treat corporations exactly like human speakers in the political realm, represents a radical change in the law.”
Are corporations really the same as human citizens, entitled to the same unalienable rights of life, liberty and the pursuit of happiness as we are? If entitled to the same political freedom of speech, are they henceforth entitled to the full extent of rights accorded by the Constitution?
Can corporations create their own political parties and run for office too?
It’s an interesting interpretation.
Corporations can have the same rights as people when we can’t have the same rights as them. Regular Joes don’t have corporate treasury funds at their disposals, nor do they enjoy special tax provisions and write-offs that corporations do.
The spirits of the strict constructionists of bygone days are probably rolling in their graves right now.
The Constitution was written for citizens of the United States and no where does the word “corporation” or anything akin to it appears.
And yes, while the court does acknowledge that corporations are afforded certain rights, they are much more limited that those of real people. This view had been upheld through over a century of rulings.
That’s because, simply put, corporations are not people: They are man-made entities that can be bought or sold.
How in the world can you equate that to a living, breathing human being?
As Stevens added, “The only relevant thing that has changed since is the composition of this court.”
Has the court become so ideological that it has become blind to what is fair and just? The Bill of Rights was made to protect those with no power.
Chief Justice Roberts, for all his rhetoric, has subscribed to the oft-derided act of writing laws from the bench by redefining freedom of speech for all intents and purposes.
The public is always wary of a majority in Congress, like the filibuster-proof one the Democrats enjoyed. But politics is such that majorities are easily broken, like last week’s special election in Massachusetts demonstrated.
Roberts, however, can be content for the time being, seeing as how only retirement or untimely death can break up the court’s conservative majority.
It is so easy to become disillusioned with the world of politics. But when the highest court in the country plays politics in such an obvious and ideological manner, cynicism is a given.
I had never been either for judicial activism or restraint. I had always considered that the approaches should be decided on an ad hoc manner.
But I always had respect for the idea of judicial modesty in the sense that they were trying to maintain the integrity of the Constitution in applying it to times so radically different than the one in which it was conceived.
For the first time, I have truly felt the deleterious impact of circumventing the Constitution through egregious judicial activism in order to benefit a tiny percentage of the population to the detriment of all the rest.
Free speech isn’t so free these days, is it?
First, I find it funny that you are telling the Supreme Court what the first amendment covers. Isn’t that there job? What are your qualifications to tell these judges how to do their full time jobs? It is ridiculous for you or anyone else to tell the Supreme Court what the Constitution says. I personally don’t always agree with the Supreme Court but it is there job to decide what the Constitution says.
Second, what’s the difference between the corporations paying for ads via not for profit shells and paying for them directly? The only difference I see is more transparency, at least now we’ll have a better idea who is paying for it as they will have to say who paid for the ad. Both parties are buried in corporate money (the biggest donor for Obama in 2008 was University of California followed by Goldman Sachs and the biggest donor for McCain was Merrill Lynch) and that is just the disclosed money. In the PACs there is even more “soft” money used by corporations to advertise in political races.
Third, corporate money doesn’t buy elections. Money doesn’t buy an election as was seen in the races in Virginia, New Jersey and Massachusetts. In all of those races the Dems out spent the Repubs by a ton and still lost. People aren’t stupid and so just having more money doesn’t mean that someone will win or that the other side will lose.
Fourth, companies deserve the right to defend themselves. What better way to defend yourself than to support propositions or candiadates?
Fifth, I find it hypocritical for Dems in general to try and get activist judges in the courts and then complain when others act to over turn that activism. I personally am a strict constitutionalists in my belief but there have been many decisions over the years that were based more in activism than in fact and so overturning those decisions is not activism as far as I am concerned. It is righting of a wrong that was done by the Court in the past.
Sixth, corporations are big and small. With lots of money and with nearly no money. So to group them all as having limitless money is an extreme over generalization. Corporations are in essence a group of people that make a product or service of some kind. Why deny these people there right to speak?
Seventh, there are many billionaires (George Soros comes to mind) that use thier money to push one candidate or another. Those people have more money than most corporations. Should we not allow them to run ads just because they have a lot of money? Should we censor them just because they have better access to the media? I don’t think so. As much as I disagree with some rich people’s ideas, I don’t agree that they should be censored just because they have money.
I figure that you would have thought of a lot of these things if you would have thought about it a little more but then again many not. If you have any comments or problems with my points, feel free to respond.
I’m going to be brief:
1) I would be telling the Supreme Court how to do their job if it was a unanimous decision. It was a 5-4 split, and I would venture to say that four other justices would actually agree with the things I wrote.
2) I actually agree with you here, there is no difference seeing as how the majority of a candidate’s donations go to cover television ads.
3) Where did I say that corporate money buys elections? I don’t presume to make such a blanket statement. However, corporate money sure as hell heavily influences elections and the way our elected officials cast their votes. That’s just a fact of life.
4) Once again, I did not say that corporations don’t have the right to defend themselvs. Rather, I said that they are not people and should not be equated as people. Is that such a radical idea? Because if they should have the same political rights to free speech as I do, why shouldn’t corporations be allowed to hold office?
5) What’s hypocritical is that Roberts and Alito swore to uphold the tenants of judicial modesty and restraint. Why the double standards when it comes to corporations? And how is over 100 years of judical precedent concerning campaign finance restrictions “activism” when the Constitution itself makes no mention whatsoever of the role and rights of businesses?
6) Once again, a corporation is not a person. It is created by people and bought by people and sold by people. And you’re right, not all corporations are “born” equal – obviously I’m not referring to the mom and pop shop as having limitless money. BigPharma is another issue.
7) I think they should be restricted too, in all honesty. Personally, I don’t think it’s fair that a billionaire can funnel millions in “soft” money.
By the way – it seems as though you just read the title of this article and made up your mind as to how I, a liberal, would have responded to the Supreme Court’s decision. I either already addressed some of the points you raised or I did not even mention some of the things you assumed that I had said.
I know that you didn’t cover all of the points I brought up, I just thought that they needed to be discussed to have a complete discussion. I know many of the positions help by a typical liberal but I don’t know yours so I responded to some parts of your article and added my own comments in others. I don’t see why that would be wrong to do.
1. In response, look at the Supreme Court’s history and most cases are not unanimous and some of the biggest cases out there are 5-4 decisions. So should we just not follow those decisions because they were 5-4? As far as the law is concerned, 5-4 is as good of a law as 9-0 is.
2. Agree.
3. A lot of things can influence politicians such as groups like AARP, NRA, Move on.org, AMA etc. These groups have as much money and influence as corporations could ever have, why allow them to support candidates or attack candidates and not allow corporations?
4. Who said that they should have all of the rights of a person? They are being put on the same footing as AARP, moveon.org, unions, etc. Can a union run for office? No and yet we don’t think that is strange. So why would it be strange for corporations?
5. Lawrence v. Texas, Roe v. Wade, etc. The list could go on and on where the court overturned a long line of case law. The fact is that no matter if the activism happened a 100 years ago or yesterday, it is still activism and not in line with our Constitution and our bill of rights. As you said, the Constitution doesn’t say anything about corporate rights, so what gives previous courts the right to bring up the subject at all?
If you look at first amendment law, this case falls right in with the others. I don’t agree with all first amendment law (flag burning and Nazi marches being protected speech) but I do agree with the premise that more speech is better than less speech.
6. I know a corporation is not a person but a legal entity but so is a union or PAC. I don’t see much difference as they are all a group of people working together towards something whether that be work conditions, political power or profit.
7. I don’t like this and I think it can skew a race but I think it is 100% protected by the first amendment much like the Nazi marches and flag burning. I disagree with the actions but the US has an expansive definition of freedom of speech and thankfully so. I think the more speech the better, it allows all sides to make their points though some can say it louder.
To run for the office of president, a corporation must be a naturally born citizen, of which it is not. You could argue a 35 year old business, a permanent address for 14 years, but the first requirement does not stand. A corporation, I suppose, can run for senator or house since this stipulation is absent. But the fact is, this court’s decision has no bearing on these facts since based on the constitution, there is nothing holding back the right of a corporation to run for senate or a house position prior to this decision. A corporation is by definition a citizen of the state in which it is incorporated and the other requirements can be fulfilled as already addressed. I really wish liberals understood economics and the constitution, especially economics right now.
Below are comments extracted from Justice Stevens’ dissenmt:
The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for profit corporations and unions to decide this case.
While that glittering generality has rhetorical appeal, it is not a correct statement of the law. Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose. The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.
The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.
(“A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it”);