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.