Why Judicial Activism is a Two-Way Street

As briefly surveyed in last Friday’s Amici Curiae, the U.S. Supreme Court’s recent decision in Citizens United v. Federal Election Commission, No. 08-205, is causing quite the stir in judicial circles for its recognition of corporations as legal persons entitled to First Amendment protection. What many conservative commentators are calling a major victory for free speech has been sharply criticized by liberals for its permission of wealthy special interests to “speak” (and spend) freely in electoral campaigns, something expected to especially benefit Republican candidates.

While I leave a detailed exposition of the case to a forthcoming post by TheCourt.ca’s Chanakya Sethi, and without weighing in on the relative merits of these competing critical assessments, I am encouraged by the liberal commentary for its appropriation of a more popularly conservative argument that the decision typifies “judicial activism”. Such commentary runs counter to the image of the morally feckless rights-bearing, foreign law-toting, “wise Latina” activist judge that has so captured the public imagination, and is — in my view — a refreshing contribution to our often unbalanced political discourse.

The Conservative Activist Outcry

Consider the Slate Magazine’s Dahlia Lithwick, who with characteristic humour and a discernibly sardonic tone describes Justice Kennedy’s reading of the Citizens United majority opinion as “the moment at which the Roberts court allows itself to finally give voice to its full-throated judicial activism.” She continued,

Kennedy’s soaring sonnet for corporate free speech has very little to do with the case at hand. The court had to reach out far beyond any place it needed to go to strike down century-old restrictions on corporate spending in federal elections. This started off as a case about a single movie. It morphed into John Roberts’ Golden Globe night.

Another commentator Richard L. Hasen echoes a similar refrain with somewhat more urgency: “[i]t is time for everyone to drop all the talk about the Roberts court’s ‘judicial minimalism.’” He writes that we must “[m]ake no mistake, this is an activist court that is well on its way to recrafting constitutional law in its own image.”

Perhaps reaching the greatest audience, the New York Times Editorial Board accuses the majority of seizing on a case involving a narrower, technical question arising in a very specific factual context and elevating it to a forum for striking down the entire ban on corporate spending. It even opines quite sensationally that, with one more vote,  the four Citizens United dissenters could “rescue democracy” from this decision.

Whether this case will so radically alter the American electoral landscape remains to be seen. These commentators’ cries of judicial activism seem unusually vociferous, however, and speak of such fatalistic consequences that it may be unwise to regard them as mere knee-jerk reactions or media-friendly soundbites designed to colour popular opinion. Rather, they may be attributed to the considerable frustration of an inflamed liberal bloc, possibly represent the court’s failure of judicial review, and (at the very worst) portend a dangerous trend in which the increasingly politicized majority exceeds its proper role by making findings in pursuance of partiality.

Memories of Lochner

Citizens United is certainly the most recent U.S. decision to inspire such calls of conservative activism, and its notoriety may still increase. It is, however, by no means the most controversial decision of the Supreme Court. That case may be Lochner v. New York, 198 U.S. 45, a 1905 Supreme Court decision that is widely regarded to be one of the most influential and poorly decided in U.S. constitutional history.

In Lochner, a conservative majority of justices invalidated a scheme for economic regulation designed to promote the health of bakers, to protect them from unfair labour practices, and to ensure a good quality product for consumers. The majority accomplished this by reading a right of free contract into the Fourteenth Amendment’s guarantee of “liberty of person”.

Justices Harlan and Holmes filed separate dissents in the case, criticizing their colleagues for making pronouncements that were outside “the province of the court to inquire.” The former prophetically wrote that,

[n]o evils arising from such legislation could be more far-reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statutes that had received the sanction of the people’s representatives.

Indeed, the precedent in Lochner dictated over thirty years of U.S. Supreme Court jurisprudence invalidating similar regulations that sought to protect the lives, health, and well-being of workers during the Progressive Era and Great Depression, despite the majority’s over-reliance on an economic theory to which the majority of legislators did not prescribe. In what may be his most famous dissent, Justice Holmes spoke to his colleagues’ seeming partiality by stating that,

the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon whether statutes embodying them conflict with the Constitution of the United States.

These reasons have since been adopted by majorities of the Supreme Court, such that American judges who impose their own values to strike down legislation are often accused of “Lochnerizing“. Lithwick, Hasen, and the Times Editorial Board evidently seem to fear that, in thirty years time, popular discourse will have supplanted this term with “Citizens Uniting“.

Balancing the Discourse

In the short term, I am hopeful that these commentators will help rebut the prevailing association of judicial activism with political liberalism by voicing their criticisms. Often, courts which make politically progressive findings are accused of being “activist” or “legislating from the bench” by conservative critics.  Whether these conservatives are justified in protesting judges’ imposition of their own values on society or are unjustified in rallying against judicious responses to an inevitable widening of our social mores, their objections seem disproportionately represented in the popular media and our political discourse. The public image of the judicial activist is that of the radical liberal, not the staunch conservative. It seems decisions falling to the left of centre are more routinely accused of over-reaching than those falling just as far to the right, which are more frequently seen as typifying restraint.  And yet, of course, both liberals and conservatives may over-reach equally.  In the judiciary, as in all decision-making fora, partiality is a two-way street.

The public interest may be better served if we are all better appraised of civic and legal issues, including the proper role of the judiciary. Our opinions, however, are only ever as well-informed as the discourse that informs them.  I am encouraged by the possibility, then, that recent appropriations of activist criticism may contribute to greater diversity in the marketplace of ideas.

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