judicial activism (citizens united–part 2)

It is said that when President Johnson signed the Civil Rights Act of 1964, he remarked that the Democrats were signing away the South for a generation. When Chief Justice Roberts signed the majority opinion in Citizens United, the Republicans signed away the judicial activism argument for a generation.

Ask people to list reasons why they vote for Republicans and they will probably come to a judicial activism argument eventually. That argument sounds something like this: “Republicans appoint judges that know what their job is. The job of judges is not to make laws or change laws that they disagree with. The job of judges is to take the issues that are presented to them and apply the law, as it exists, to the facts of the case in order to resolve those issues. That is it. Their role is limited. Democrats appoint judges that think it is their job to change the law in any way they want, and that is why I vote Republican.”

That assessment of the proper role of judges is broadly correct. Judges should be neutral arbiters of the law. They should apply the law as it exists, not as they believe it should exist. However, the judicial activism argument fails because judges appointed by Republicans engage in judicial activism at least as often as judges appointed by Democrats. Exhibit A: Citizens United.

In the Citizens United case, the court was presented with this question: does a law that prevents corporations from sponsoring advertisements that expressly advocate for or against the election of political candidates within one month of an election apply when a small, non-profit corporation creates a movie that negatively depicts a political candidate and wants to make it available via on-demand television? Now, that sentence sounds convoluted due to the excessive amount of prepositional phrases, but that is the point. The court was presented with a very specific and narrowly defined question. The court answered that question by holding that all corporations have the same freedom of speech rights as individuals and that the entire regulatory scheme for corporate contributions to campaigns was unconstitutional.

Courts have rules to prevent judicial activism. In Citizens United, the court broke nearly all of them. One rule is that courts should decide cases on the narrowest grounds possible, in order to avoid sweeping changes to the law. The Citizens United court could have held (as the lower court did) that the statute in question didn’t apply to on-demand movies. When Congress passed the statute, it was concerned about commercials on network and cable television. On-demand TV was in its infancy at the time. It would have made perfect sense for the court to have said that the law didn’t apply to on-demand movies.

The court also could have held that the law wasn’t intended to apply to non-profit corporations. This approach would have had the helpful effect of minimizing the “press” problem identified in Part 1 of this post. If the statute did not apply to non-profit corporations, organizations like the AARP and the Democratic Party would have retained their ability to speak without having to be defined as “press.”

Another rule is that when faced with constitutional questions, courts should examine the constitutionality of laws as they apply to particular sets of facts, instead of the constitutionality of the law in general. The reasoning behind this rule makes sense: rarely will a law be unconstitutional in every conceivable application.

The court shirked this rule as well. It considered the constitutionality of the law “on its face” as opposed to considering the constitutionality of the law as it applied to the facts at issue. Had the court engaged in an as-applied analysis, it would not have run into the problem of defining the difference between press and non-press. Nobody contended that any of the parties were press.

Constitutional law is meant to develop over time, piece by piece. Courts are presented with sets of facts and ask themselves whether the statute in question violated any of the constitutional rights of the parties in the case. In Citizens United, the court essentially said that the law was invalid because it would violate the rights of (press-related) entities that were not involved in the case, but could be involved in future cases.

A third rule is that courts should only consider the arguments that the parties present to them. In Citizens United, the argument that the statute was unconstitutional on its face was not even presented to the court. In the trial court, the plaintiff initially argued that the statute was unconstitutional both on its face and as applied to the facts of the case. The government told the court that in order to properly respond to the facial challenge, it would need more time in order to compile evidence of all of the situations in which the statute would not chill speech protected by the First Amendment. Faced with the possibility of the delay, the plaintiff chose to waive its facial challenge. The government never compiled that evidence, and the trial court ruled only on the as-applied challenge. That court’s decision was then appealed. Once a case is appealed, the parties can no longer compile evidence. So, the Supreme Court decided that the statute was unconstitutional on its face without even allowing the government to demonstrate otherwise.

Finally, the “catch-all” rule to prevent judicial activism is stare decisis. Existing Supreme Court decisions should be upheld unless it is abundantly clear that they were in error. In Citizens United, the court overruled at least two previous decisions: Austin and McConnell.

The majority in Citizens United seemed to concede the point that it had to be clearly in the right in order to overturn Austin and McConnell. The majority made the over-the-top assertion that the existing state of the law created “an ongoing chill upon speech that [was] beyond all doubt protected.”

It is hard to believe that the speech at issue in this case was “beyond all doubt protected.” For starters, four justices dissented. Also, the majority of the Supreme Court took the opposite position on two previous occasions (Austin and McConnell). Finally, as Justice Stevens described in detail, Congress had been placing limits on campaign spending by corporations since 1907. The majority asserted that the Supreme Court had not actually addressed the issue of whether Congress could place limitations on corporate speech until 1990, when it decided Austin. However, as Justice Scalia fervently argued in Lawrence v. Texas, if the courts allow Congress to get away with something for a long period of time, it is probably not unconstitutional.

The majority defended itself by arguing that it would not have made sense to decide the case on narrower grounds because a narrower decision would have chilled speech protected by the First Amendment. Whether that interest overcomes all of the problems with the case summarized above is an open question.

However, it seems clear that the justices in the majority wanted to change the law. The majority allowed an appeal from a trial court decision to go directly to the Supreme Court (something that it almost never does) and broke nearly every rule in existence designed to prevent judicial activism.

The justices who signed the majority opinion were Justice Kennedy (appointed by Reagan), Justice Scalia (appointed by Reagan), Justice Thomas (appointed by Bush I), Justice Alito (appointed by Bush II) and Chief Justice Roberts (appointed by Bush II).

The Citizens United opinion is the clearest example of judicial activism in Supreme Court history. Judges appointed by Democrats may occasionally engage in judicial activism, but so do judges appointed by Republicans. The Republican Party can no longer claim (with intellectual honesty) to be the party of judges who shirk judicial activism.

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15 Responses to judicial activism (citizens united–part 2)

  1. Village Bear says:

    This may be the best bear picture ever.

  2. Jake says:

    Though I will not argue your points about how the judicial system and the courts operate, or the policies and procedures that they are to operate under simply because I am ignorant to the subject; I will however make the point that you are using very broad generalizations to describe the republican party and conservatives in general.

    We all understand that the Supreme Court is in the position to interpret the Constitution as necessary to rule on individual events which may not be explicit in its writing. Additionally, we understand that the Supreme Court has the obligation to provide a check and balance to the legislative and executive branch. To state however that conservatives generally claim that the above is inherently “judicial activism” is not really being fair.

    When conservatives think of judicial activism, we consider the following argument commonly made “the founding fathers and the constitution couldn’t have considered present day situations and as such the arguments should not be considered in light of constitutional rights and enumerated powers but rather what we think is best”.

    i.e., judicial activism is the thought that the Constitution does not apply and as such the judicial branch assumes the position of establishing precedent.

    Further. In one portion of the argument above, you come very close to making the claim that judicial activism is fine so long as both sides are engaged in the practice.

    They should apply the law as it exists, not as they believe it should exist. However, the judicial activism argument [of the republicans] fails because judges appointed by Republicans engage in judicial activism at least as often as judges appointed by Democrats

    Judicial activism should be opposed by all, regardless who is doing it. Of course, judicial activism is also very subjective.

  3. I really appreciate this blow-by-blow of events. I wasn’t really following news/politics when this case happened, so most of what I know about it is from thrice (or more!) removed sources.

    With Love and Gratitude,


  4. Suszek says:

    Jake, I think we agree on nearly everything here. I did not mean to argue that Republicans think that the Supreme Court should not clarify the ambiguities in the Constitution. I would agree with your characterization of judicial activism.

    I certainly did not mean to suggest that judicial activism is fine as long as both parties engage in it. The point I was trying to make is that if Republicans engage in it as much as Democrats, Republicans can’t use it as an argument for why Republicans should be elected President. If it were true that Republican-appointed judges were less likely to engage in judicial activism, that would be a legitimate reason for people to vote Republican. However, that is not the case.

  5. Keri says:

    So, for those of us who believe that this decision is flat-out wrong, is there any way for it to be rectified? Is the only option to wait for a new composition of the Supreme Court and hope they’ll accept a case on this issue? Or hope that maybe some day Congress will get serious about campaign finance reform? It’s scary to think that elections forever more will be available for purchase by corporations.

    PS — I think I’ve worked in a law firm too long and edited too many legal articles, because it’s kind of driving me crazy that you’re not italicizing the case names. ๐Ÿ˜‰

  6. Suszek says:

    The Supreme Court has an unwritten rule that it should never overturn a previous decision just because there was a change in the political winds, allowing one party to appoint enough justices to make the court more liberal/conservative. So, if Justice Scalia were to have a heart attack tomorrow, and Obama were to get a new justice confirmed within six months, it is unlikely that the court would reverse itself. This unwritten rule is fairly strong. In 1992, the court considered an abortion case after Bush I and Reagan had appointed a majority of the court between them. The court upheld Roe v. Wade, even though the language of the opinion suggested that the justices hated themselves for doing so.

    DeMark would probably (accurately) point out that Citizens United itself was a reversal of previous law resulting from the fact that the court is more conservative now than it was 20 years ago. Although true, the argument that the conservatives did something wrong so the liberals should fix it by also doing something wrong probably won’t carry a lot of weight. So, I wouldn’t expect a reversal in the next 20 years. I would expect the court to chip away at the opinion (in much the same way as it has done with Roe).

    I would give Congress a very high grade on campaign finance reform. It has enacted some quite strict measures over the years, such as McCain-Feingold. The problem is that the Supreme Court keeps striking the tough measures down. Citizens United was the second time that the Supreme Court struck a significant blow to that law alone. So, I am all for blaming the country’s problems on Congress, but this time, I think they have to be let off the hook.

    I’ve been trying to avoid using legal writing style methods, because they are not only unfamiliar to most people, but they also make no sense. I should italicize case names, but I haven’t quite mastered the ability to do that in the comments yet. Good call though.

  7. @Andy: in the comments, to italicize something, use HTML code. If you want something italicized, put (without the spaces) before the text you want italicized, and put (without the spaces) after the text you want italicized.


    Your discussion about this case motivated me to go back to what some of the people on the Left said the day that this case passed the SC. I’m not really a big fan of Olbermann, I think he’s just as inciting as some of the media on the Right, but he does make some very interesting monologues. In fact, he even predicted that the Republicans would go after Unions in his monologue about Citizens United. Maddow was much calmer, but still using some hyperbole (or maybe it wasn’t?) to get her point across.

    With Love and Gratitude,


  8. Suszek says:

    Thanks Jeremiah. I got it.

  9. Oh shoot!

    My comment did not come out the way I had typed it — and it kind of makes me come off like a complete jerk. I was trying to type out the html code (with spaces), but it seems that the spaces I put in-between the html was ignored, so it just looks like I’ve italicized things unnecessarily.

    Sorry about that Andy! :-\

  10. Suszek says:

    No problem. It came up the way you wanted it to in the dashboard.

  11. Keri says:

    Interesting, regarding the unwritten rule about overturning a previous decision. Apparently, the (dysfunctional) Michigan Supreme Court doesn’t follow any such rule. See Kreiner and McCormick as a recent example.

  12. demark! says:

    It’s always interesting to hear what I’m going to write about before I write it ๐Ÿ™‚
    Andy, I promise I’ll read your posts always, but I won’t necessarily comment on all of them. That said, I can’t not post comments about this case! (I need some HTML italics there)

    I think you did a very good job explaining where activism went astray in this case. I also think that your commentary about the Republican plank on this is now rotten. Of course, I’ve always found the argument against judicial activism to be, put bluntly (sorry Jake), bullsh!t. This case may be the worst modern example of judicial activism, but the most egregious case ever is “beyond all doubt” Marbury v. Madison. To that point, the SCOTUS couldn’t even review the constitutionality of laws. Chief Justice Marshall went way out of his way – inappropriately I might add since he should have recused himself for being a part of an integral actor in the facts of the case – to give the Court the right to review laws. And God love him for it. Without judicial review, the Supreme Court would essentially be a shriveled up third branch. If we’re worried about runaway exec power today, I shiver to think where we would be without an effective judicial branch. Actually, I know exactly where we’d be: here, in Congo. And let me tell you, that’s no place to be ๐Ÿ™‚

    And so I say again, “judicial activism” is a misnomer and is BS. It’s a misnomer because it implies judges cannot act independently. The Constitution itself gives active power to the Court- not to mention the exec and leg branches using their own constitutional powers to give the same. There is some mythical argument out there that for some reason, activists judges want to throw out the Constitution because it doesn’t apply to modern times. That is (and this time I mean these words) without a doubt false. There is not one judge in America that doesn’t believe in the Constitution and its current applicability. The difference between judges comes down to how they interpret the words of the Constitution. And short of Justice Scalia, Justice Thomas (when he feels like sucking up to Scalia), would-be Justice Bork, and Jake, there are not “originalists” that believe that every modern situation could have been anticipated for and was thus included in the Constitution by the Founders. As such, “activism” is as much a part of the Constitution as “We the People.”

    That said, this case went too far. However, Andy, I would NEVER EVER advocate for a political change in the court leading to a quick reversal of a decision. That, and I strongly STRONGLY agree with how President Obama phrased it during last year’s State of the Union as he stared the justices directly in the face but spoke directly to Congress: it is the sovereign role of Congress to affect change on poorly decided court cases using their own powers. This is how balance of powers works. And for balance to work, each branch has to have some powers.

    Stick that in your village bear and smoke it!

  13. Suszek says:

    DeMark, I definitely did not mean to suggest that you would advocate for a political change on the court to accomplish a reversal (although I can see how my comment could be read that way). My point was that someone with a strong distaste for the case (such as yourself) could reasonably point out that Citizens United itself bent the very rule that I claimed was so strong (creating all the more reason to dislike the original decision).

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  15. Kelly says:

    Hey guys thanks for the info. Does anyone know three good arguments for judicial activism? And three good arguments for judicial restraint please let me know thanks:)

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