Friday, January 22, 2010

Supremely Undemocratic

I was going to post something on the unbelievably damaging Supreme Court decision on corporate money in politics. Then I read this bit from Erwin Chemerinsky of UC Irvine's law school in the LA Times. He's got it covered and he saved me some typing.

Some of the more important points (although this is really a no-brainer for anyone who's been paying attention):

[T]he 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.


To conservatives...the phrase "judicial activism" has come to mean any decision with a liberal outcome.


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.

The conservative majority, which in recent years has dramatically limited free speech in other areas -- such as for government employees and for students -- was willing to expand the free speech of corporations. There is no way to see this other than as the conservative justices using judicial review to advance the traditional
conservative ideological agenda.

Almost 10 years ago, in Bush vs. Gore, the five conservative justices for the first time decided a presidential election. One would have thought that decision would have laid to rest the notion that judicial activism is a tool of liberal judges and revealed that the real judicial activism today is from the right. Perhaps Thursday's decision will finally reveal the truth.

Let's all say it together, people. "Judicial activism" is complete bullshit.

I will add two other notes that Chemerinsky doesn't go into, although I understand why nobody's talking about the second one.

1. Roberts, Scalia and Co. have also touted judicial restraint as meaning narrow rulings on the case at hand and not broad, sweeping, legislating-from-the-bench type decisions. They used this to justify claiming that Bush v. Gore could not even be used as precedent, which is laughable for obvious reasons. And yet, they could have made a narrow ruling on the case at hand, which was whether a certain group could play a Hillary-bashing movie on TV right before an election. Instead, the court opened it up to let in corporations who weren't even making a claim and gave them rights that they didn't need and shouldn't have. Judicial activism of the highest order.

2. The group Citizens United, the original claimant in the case, was originally called, get this, Citizens United Not Timid. Ha! Clever. Like the logo? Just in case you didn't get it. You can understand why there's no reference to this on their current website. The old URL doesn't even redirect. But I can't imagine why Keith Olbermann, at least, isn't bringing it up.

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