But his op-ed on Citizens United is crap.
Of course you can read my argument on the subject, here. Or just scroll down, you lazy bastard!
So let’s start reading together, shall we?
The Supreme Court's 5-4 decision holding that corporations and unions can spend unlimited amounts of money in election campaigns...
Okay stop right there. This is dishonest. The FEC told Citizens United that it could not purchase advertising. So to frame this as being about spending, without noticing that the spending purchases speech is dishonest.
I mean imagine if we passed a law stating that the New York Times was forbidden from buying paper or ink. Would that be a restriction on commerce? Or would that be a restriction on the freedom of the press?
This isn’t a restriction merely on expenditures. This is a restriction on expression. Remember that.
…is a stunning example of judicial activism by its five most conservative justices.
Yes, you see, when you say that the part of the constitution that says “Congress shall make no law... abridging freedom of speech, or of the press” it is activism to say Congress cannot pass a law restricting freedom of speech, or of the press. Oh, but friends, Erwin is about to get a lot more disingenuous than that.
Since Richard Nixon ran for president in 1968, a central feature of Republican and conservative rhetoric has been to attack judicial activism.
Wow, isn’t that subtle the way he associated a disdain for judicial activism with Richard Nixon? I just wonder how long Nixon will have to be dead before the democrats stop dragging him into every argument? Let’s coin a term for that: the reductio ad Nixon.
The phrase is never defined with any precision and has often been used to refer to decisions that conservatives simply don't like.
Actually except for the word “often” I think that is a defensible statement. There are conservatives who call decisions activist that maybe don’t deserve that.
But get ready for the most dishonest line in this whole Op-ed:
But if judicial activism has any meaning, it surely refers to decisions that overturn laws and overrule precedents.
Really? That is the only definition that has any meaning? How about this one? “Ruling based not on the constitution, but upon your own policy preferences.” You ever hear of that definition, Erwin?
Even in isolation, I would find it impossible to believe that Erwin has read and written so much about constitutionalism, but was never exposed to that definition of judicial activism. One only needs to read Robert Bork’s book on the subject to learn it. But in a moment I will show you that his deceit goes even deeper than that.
But anyway, so the entire premise of the this article is:
1) conservatives believe in upholding precedent above all else and blindly obeying any law that congress passes however flagrantly unconstitutional; and
2) therefore every time a conservative overturns a precedent or a law, it is activism.
Therefore they are hypocrites for not obeying the definition of activism that Erwin just pulled out of his ass.
Wow. That is serious bullshit.
By this definition, judicial activism can be good or bad.
Well when you define it as following precedents and statutes blindly, no shit. He goes on to say that Brown v. Board of Education is a shining example of judicial activism, because it overturned Plessy v. Fergusson.
(And for those who are not legal geeks, Plessy upheld segregation; Brown declared it unconstitutional.)
Well, sure it is great if you define activism as overturning a precedent. But if you define activism as adhering to the constitution, then the activist decision was Plessy. And the non-activist result was Brown.
Now of course I am careful with my words there. I said Brown’s result was not activist and that is true. Thaddeus Stevens, one of my constitutional heroes and father of the Fourteenth Amendment, said that he dreamed that under this amendment “no distinction would be tolerated in this purified republic but what arose from merit and conduct.” And his devotion to equality of opportunity was so profound that when he learned that he had purchase a plot in a segregated graveyard, he sold it and purchased on in a desegregated one. He even explained on his tomb that he did this to illustrate in death the principles that he had fought for in life: EQUALITY OF MAN BEFORE HIS CREATOR.
So in my mind, segregation was never legal, that Plessy v. Fergusson was the act of judicial activism, or perhaps it was better understood as an act of judicial cowardice. And Brown restored the Fourteenth Amendment to something approximating its intended meaning.
But the Supreme Court never said that in Brown. They said we can’t figure out what the framers felt, so fuck it, we will figure it out ourselves. So for liberal activists this is considered the start of the ascension of liberal activism in the Supreme Court.
But I have long suspected that in fact the decision was secretly an originalist one. Follow me on this. Any originalist argument necessarily focuses on the words and attitudes of Thaddeus Stevens and a menagerie of radical republicans who were considered in the south to have been the supreme villains of history. Can you imagine what the Southern reaction might have been if the Supreme Court not only declared Segregation to be unlawful, but cited those “awful” radical republicans to do it? Hell, they might have rebelled all over again. So is it that hard to believe that maybe, just maybe, the Supreme Court decided that it was better to be called activists, rather than admit they were faithfully applying the Civil War Amendments as the radical Republicans intended? Who knows, but it is a tantalizing possibility.
Erwin goes on.
To conservatives, though, the phrase "judicial activism" has come to mean any decision with a liberal outcome.
Really Erwin? To all of them? Because in fact Judge Bork’s chief argument in The Tempting of America is that liberals should oppose activism because usually the activists have been conservative. Certainly the example of the constitutionally declared freedom of contract is but one example.
But then here is the really amazing part. Then Erwin quotes several conservative voices that describe exactly what they mean by judicial activism:
President George W. Bush declared: "The judges ought not to take the place of the legislative branch of government. . . . I don't believe in liberal activist judges. I believe in strict constructionists." The 2008 Republican platform declared that "[j]udicial activism is a grave threat to the rule of law because unaccountable federal judges are usurping democracy, ignoring the Constitution and its separation of powers, and imposing their personal opinions upon the public."
So after pretending that conservatives adhere to a definition of judicial restraint that he pulled out of his ass, he then gives you all the evidence that you need to see that he was full of shit. Wow. You know, usually when you lie to people, you shouldn’t give them the evidence of that lie a minute later. Just a helpful tip.
He goes on:
McCain-Feingold was a continuation of statutes that have existed since 1906 limiting corporate spending in federal election campaigns.
By continuation, he means a succession of statutes, each more repressive than the others. So he is upset that the court stopped slipping down the slippery slope. And of course McCain-Feingold was the worst offender, actually purporting to limit the speech rights of anyone before an election. This is exactly why I had to hold my nose when I voted for McCain.
The act was intended to prevent the enormous wealth of corporations from distorting elections...
By distorting, he means, allowing the people he doesn’t like to win the debate. You know, because its okay under the constitution to ensure that your side always wins the debates. /Sarcasm
Seriously, what does he think the First Amendment is about?
...and protect corporate shareholders from having their money used for purposes with which they disagree.
Gee, if only there was something a shareholder in a corporation could do, to avoid having the company they have invested in say something they don’t like. Like if there was some sort of way to exchange their stock for the stock of companies that say what they want, or say nothing.. Maybe call it a "Stock Exchange." If only such a thing existed. /sarcasm
For years, conservatives have argued that judicial restraint requires deferring to the choices of the elected branches of government.
Wow, now he is claiming that conservatives are opposed to judicial review. Who knew?
Nor did the decision defer to judicial precedent.
Nor should it have. We should not stand by and allow an unconstitutional restraint on speech just because one time you managed to convince five justices to go along with it.
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.
Sounds like a fair enough statement but… wait for it… wait for it…
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.
Really? Not the slightest bit of evidence? Well, let’s review that constitutional language, again, shall we? In fact lets quote the whole thing so no one can accuse me of dowdifying a quote:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Do you see any language saying that only real persons have a right to freedom of speech? Nah, neither do I. All it really says is, Congress stay the fuck out of this issue.
And I will remind you how radical the implications are if we don’t accept that entities have a right to freedom of speech. This means, for instance, that we can pass a law stating that the Democratic party is not allowed to speak. I mean, they aren’t persons, right? And of course every decision upholding a corporation’s free speech rights is apparently wrong.
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.
Or so he says without any specificity, but given his rank dishonesty in the rest of this op-ed, I am not going to believe that without proof. He doesn’t even give part of a citation to do so.
Almost 10 years ago, in Bush vs. Gore, the five conservative justices for the first time decided a presidential election.
Um, no, they decided that the flagrantly corrupt methods by which they were conducting the recount was unconstitutional.
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.
But let me stop here for a moment, Erwin and ask a question here. Okay, so you don’t believe the constitution ought to be followed. I get that. So, then, what is your complaint in Bush v. Gore? I mean if you feel that the constitution means whatever 5 of nine of our the our black robed oligarchs decide it means, well, then what is the complaint? Doesn’t this view lead inexorably to the conclusion that whatever they say is automatically right? That all their decisions are constitutional because they say it is? Now most sane people consider that attitude servile, but isn’t that what you have chosen as your judicial religion? A servile attitude? So what the hell are you bitching about?
Ah, but in the end it isn’t activism he wants, but liberal activism.
But Bush v. Gore exactly highlights the problem with true judicial activism. The courts have so eroded their position in society as neutral arbiters, as a body that blindly and unswervingly follows the law, that many can’t believe that the court is capable of deciding an election dispute based on anything but outcome driven analysis.
But if we can’t trust the courts to make this call, then who can we trust?
Every game needs a referee, and it is essential that this referee can be trusted. Its that simple. And the fact that so many people cannot trust the courts to be that referee is the legacy left to us by decades of apologizing for and thus encouraging the real kind of judicial activism.
So if Erwin wants to whine about Bush v. Gore being activism, he has no one to blame for it but himself and his fellow travelers.