August 29, 2009

Judicial Activism

Filed under: Law, Sovereignty and Constitution — Tags: — Russ @ 4:18 am
There are several kinds of behavior which we can call judicial activism. Overriding the clear will of Congress, where that will is not unconstitutional on its face, is one. Another is overturning longstanding court precedent, again unless that precedent is patently wrong. More broadly, a court is activist where it acts against the trend of the people’s will.
In a more technical sense, a case will be argued by the litigants in a certain way. Sometimes one or both sides will ask the court to rule on some sweeping principle, sometimes they will ask for a more narrow decision. Courts often rule more narrowly than requested, and this is generally not activist, but rather conservative in the non-political sense of that term. But for a court to rule on a broader question than either litigant emphasized is always activist.
I’m not saying in any of this that any particular instance of such activism is necessarily wrong, but it is activist, which is what “conservatives” always claim to be against.
So it gives the lie to every alleged conservative ideal of jurisprudence, whether it be judicial conservatism or strict construction or originalism, when the Supreme Court’s radical right wing engages in every single one of these activist practices.
In the issue of corporate money and elections the will of Congress and the longstanding precedent are clear. Every time since the early 20th century, whenever the Congress or the Court has spoken on the issue, it has spoken in favor of limiting corporate influence on elections. Then there’s the Constitution itself, which very clearly envisioned a far more limited role for corporations than they already have. Here we’re already the victim of grotesque right-wing judicial activism starting with the 1886 extension of “personhood” rights to corporations in Santa Clara County vs. Southern Pacific Railroad . To want to extend this today is simply activism to the level of an attempted overthrow of the constitution and the people.
Even more importantly, the people have been consistently skeptical of such influence. And especially today, when the people are in a state of low boil over the destruction wrought upon our economy by corporate crimes and criminals, there can be no doubt regarding how the people respond to the question, Do you want the banks to have a greater influence on politics and politicians than they already do?
So we come to the pending case of Citizens United v. the Federal Election Commission. Here the case involved a fairly narrow issue, whether or not a corporate-funded videotape constituted a political donation, which could easily have been decided on technical grounds, and neither side was expecting more. This is how the case first argued in March. 
But the right wing court basically ordered the litigants to go back and reconceive the case as a test of broad principles involving restrictions on corporate election manipulation. They are to return in September and argue this as a test of the overarching question  of whether or not corporations should be allowed to directly give money to election campaigns. Whether or not it is “constitutional” to forbid this.
So here we have in prospect every kind of activism. If the court votes to overturn all restrictions on corporate funding, it will be an assault on the wills of Congress, the Court’s precedent, the language of the Constitution, and the will of the people, and this activist decision will have been achieved through activist directives during the argumentation process.
Unfortunately, this outcome is all too plausible. On economic issues, issues of corporate power, this Court and the federal courts in general have long been trending rightward and corporatist. There’s a reason why, for all its sometimes incendiary anti-judge rhetoric, the Right hasn’t made a broad argument for defiance of court decisions. It’s because they expect the courts, by now packed with pro-corporate judges by every president since Reagan, to be one of their last legal bastions of corporatist power, as the politics turn decisively against them. So instead the people’s advocates need to be asking this question.
The Supreme Court has no power. Andrew Jackson – “Marshall has made his decision; now let him enforce it” – had it right. The power of the court depends upon the goodwill of the executive. Since Jackson the issue has barely come up so starkly, but the power facts remain. Thus the court is in the end reliant upon political factors.
We must go further. Under these class conditions, where the court has been captured by the predatory anti-public interest corporate cabal, it has no authority. We must steel ourselves for the possibility of demanding of state and federal legislatures and executives that they defy court decisions which seek enslavement. We must be ready for anti-court civil disobedience.
I know this sounds unpleasant to those who think of the court as a progressive stalwart in the 50s through the 70s, but this ain’t that court any longer.
This court is waging reactionary war, against the will of the people and against the verdict of history itself on finance capitalism. This is a last-ditch attempt to entrench, and it will fail, but for the time being it can still do lots of damage.
This is a renegade court. Historically, the court usually lags somewhat behind the progressive will of the people. This in itself shows its inherent anti-activist tendency. The great culture war decisions followed in the wake of a higher public consciousness. The court usually waited for the people to lead before it issued what would have been the most controversial decisions, and even where it was ill-inclined it usually followed along anyway. When it comes down to it the court is a political institution.
And where a court was bent on reactionary activism, as with the anti-New Deal 30s court, it had to be jolted into compliance with the will of the people through FDR’s packing threat. Although FDR’s scheme failed, it still achieved its purpose, as the court now became more reasonable in its decisions.
So we see how hard political activism on the part of a court can be countered only with hard political activism against that renegade court.
“Judicial activism” is therefore a form of political activism. It must be seen as such and dealt with as such.       


  1. I read that article. That guy’s good. 🙂

    Unfortunately so long as we have to rely on the hit-or-miss of individual judges like Schack or Jed Rakoff taking seriously their public interest duty, while the corporatist system remains intact (and most judges adhering to it), things will only get worse.

    Comment by Russ — August 31, 2009 @ 9:54 am

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