Comment by benreesman
1 year ago
Citizen’s United was “yeah, leaning pretty hard here.”
Flipping the hours d’ouvres table over on Roe v. Wade, a tense but stable compromise, that’s verging on activist. You don’t go knocking over fragile, workable standoffs that have held longer than an Ulster cease-fire if you can help it as a senior jurist.
It’s a pretty neo-neocon consensus to put it charitably.
It’s still the highest court in the land and it’s still binding, but I hope any thinking person is hoping for more a more“spirited but healthy” tension between major worldviews.
Citizen's United seems like a pretty clear cut case of individual rights from my point of view. If your definition of "activist" is strengthening individual rights and refusing to give power to the federal government and its giant bureaucracy then I guess I'm OK with an "activist" Supreme Court.
Roe v. Wade had been criticized for 50 years as an example of an activist judiciary and was held in place by rigid adherence to stare decisis.
Would you be as confident with stare decisis if we were talking about Plessy v. Ferguson, which held sway for 58 years before being overturned? Where the judges in Brown v. Board of Education of Topeka "activists"?
If "activism" is used to describe all sorts of political philosophy then it isn't really a useful term to bring to the discussion. I think it does have meaning though and that "activism" is not what conservative members of the court are doing.
Too much "Orwellian" language manipulation going on these days, IMHO.
I agree with most of what you said, but I disagree with this:
> If your definition of "activist" is strengthening individual rights and refusing to give power to the federal government and its giant bureaucracy then I guess I'm OK with an "activist" Supreme Court.
Activism is activism regardless of whether it "strengthens individual rights" or not. It would be ridiculous to argue Roe vs. Wade wasn't activist just because it "strengthened individual rights". What rights? Rights according to whom? You could justify pretty much any decision this way.
I'm not familiar with the details of the case in Citizen's United, but whether or not it constitutes activism depends not on the effects of the decision, but the reasoning by which it was reached.
Yes, the reasoning is definitely the problem with a lot of recent decisions. One thing that stands out in my mind is the majority opinion in the prayers in school case that stated that part of their reasoning to rule in favor of the coach praying was that he was doing so in private and players could voluntarily join him. When, as noted by the descent, the case itself included photographs of said coach, kneeling in prayer with his team at center court.
> Activism is activism regardless of whether it "strengthens individual rights" or not
My comment wasn't very clear, but I was trying to communicate that recognizing that the Constitution is centered around the idea of a limited federal government with explicit powers is not evidence of inappropriate "activism". Instead it is evidence of appropriate checks on federal overreach.
I don't know what to make of your statement "activism is activism". To be a useful term, "activism" needs to mean something other than "doing something" or "doing something that I disagree with".
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It can indeed be argued that Roe v. Wade was likewise activist, and it’s a failure of the legislature that a similarly workable compromise couldn’t have been done through proper channels.
But two wrongs don’t make a right and legislating from the bench for a net decrease in individual liberty via overturning a previous ruling runs contrary to the whole premise of stare decis (that’s Latin for “precedent” in case anyone missed that). Ruling from precedent has a lot of good properties, but maybe the best one is that it puts downward pressure on unbounded, escalating bench legislating.
Brown v. Board of Education was arguably overturning Plessy, though that was attached to specific language in the 14th Amendment, which is light-years from endless, muddy, subjective arguments around states rights like with Roe v. Wade. That question was settled by a war fought to a decisive military conclusion: red states don’t get to make draconian laws around individual liberty because we conquered them with guns. States rights “freedom” is subordinate to individual rights and freedoms via the landmark ruling in Union v. Confederacy. When it’s one interpretation of the Combined and Annotated Federalist Papers on one side and the armament of the high-GDP states on the other, well the victors make the laws. It’s a “happy accident” that the victors were on the right side of history.
Citizen’s United is the worst kind of judicial activism: tortured doctrines around corporate personhood being used to overturn a good law with good outcomes with broad bipartisan support (it was called the Bipartisan Campaign Reform Act for Christ’s sake) and it was a popular law that put downward pressure on the power of powerful institutions relative to the individual.
When the language of Locke and Rousseau is used to defend the life, liberty, and egalité of ruthless megacorps and and secessionist governors at the expense of the liberty of the common citizen: that’s Orwell hoss.
Without citizens united, a newspaper couldn't run an advertisement or an editorial about an biography of an active politician without running afoul of campaign finance laws- promoting a book that describes someone in positive light is clearly a contribution in kind, when column space in the paper costs money.
There's way more nuance that went into the decision than the "corporations are people" meme.
was brown vs board of education "activist?"
possibly. I don't think I know anyone who regrets it though.
SCOTUS is just one big game of political football. for centuries.