Erwin Chemerinsky: Conservatives Embrace Judicial Activism
[Erwin Chemerinsky is dean of the UC Irvine School of Law.]
The Supreme Court's 5-4 decision holding that corporations and unions can spend unlimited amounts of money in election campaigns is a stunning example of judicial activism by its five most conservative justices. In striking down a federal statute and explicitly overturning prior decisions, the court has changed the nature of elections in the United States. At the same time, the conservative justices have demonstrated that decades of conservative criticism of judicial activism was nonsense. Conservative justices are happy to be activists when it serves their ideological agenda.
Since Richard Nixon ran for president in 1968, a central feature of Republican and conservative rhetoric has been to attack judicial activism. The phrase is never defined with any precision and has often been used to refer to decisions that conservatives simply don't like. But if judicial activism has any meaning, it surely refers to decisions that overturn laws and overrule precedents. In contrast, judicial restraint occurs when courts defer to the other branches of government and follow precedents.
By this definition, judicial activism can be good or bad. Brown vs. Board of Education was activist in that it declared unconstitutional laws in many states requiring the segregation of the races in education. To do so, the justices overruled a 58-year-old precedent upholding such laws. But virtually all agree today that Brown was one of the greatest moments in Supreme Court history....
For years, conservatives have argued that judicial restraint requires deferring to the choices of the elected branches of government. No such deference was evident when the court's five most conservative justices struck down this provision of the McCain-Feingold law on Thursday....
For decades, conservatives have argued that judicial restraint requires that courts protect rights only if they are stated in the text of the Constitution or were clearly intended by the document's framers. This, for example, is the core of the conservative attack on Roe vs. Wade. But there is not the slightest shred of evidence that the framers of the 1st Amendment meant to protect the rights of corporations to spend money in election campaigns. The conservatives were glad to abandon the "original meaning" when it served their purposes....
Read entire article at LA Times
The Supreme Court's 5-4 decision holding that corporations and unions can spend unlimited amounts of money in election campaigns is a stunning example of judicial activism by its five most conservative justices. In striking down a federal statute and explicitly overturning prior decisions, the court has changed the nature of elections in the United States. At the same time, the conservative justices have demonstrated that decades of conservative criticism of judicial activism was nonsense. Conservative justices are happy to be activists when it serves their ideological agenda.
Since Richard Nixon ran for president in 1968, a central feature of Republican and conservative rhetoric has been to attack judicial activism. The phrase is never defined with any precision and has often been used to refer to decisions that conservatives simply don't like. But if judicial activism has any meaning, it surely refers to decisions that overturn laws and overrule precedents. In contrast, judicial restraint occurs when courts defer to the other branches of government and follow precedents.
By this definition, judicial activism can be good or bad. Brown vs. Board of Education was activist in that it declared unconstitutional laws in many states requiring the segregation of the races in education. To do so, the justices overruled a 58-year-old precedent upholding such laws. But virtually all agree today that Brown was one of the greatest moments in Supreme Court history....
For years, conservatives have argued that judicial restraint requires deferring to the choices of the elected branches of government. No such deference was evident when the court's five most conservative justices struck down this provision of the McCain-Feingold law on Thursday....
For decades, conservatives have argued that judicial restraint requires that courts protect rights only if they are stated in the text of the Constitution or were clearly intended by the document's framers. This, for example, is the core of the conservative attack on Roe vs. Wade. But there is not the slightest shred of evidence that the framers of the 1st Amendment meant to protect the rights of corporations to spend money in election campaigns. The conservatives were glad to abandon the "original meaning" when it served their purposes....