Attempting to understand what constitutes Judicial Activism is much more difficult. I've probed those who've leveled the charge, and what it really comes down to is that the Judge (or Judges) interpreted the law and made a ruling to which the speaker disagrees. Unfortunately for the speaker, not being a member of the law profession, they can't mount a strong argument for why the body of law and previous rulings (precedent) should compel an alternate interpretation: They don't like the outcome, and rather than attempt to build a case, they label the judge 'Activist'.
While this may seem like a harmless shorthand, it's actually a logical fallacy: Begging the Question – Assuming the question under debate is settled, and leaping to conclusions. The question remains open as to the efficacy of the interpretation, and if an alternate interpretation, giving our laws and precedent, is actually possible or reasonable. Leveled repeatedly, with out basis, it becomes an ad hominem attack on an individual based upon political desires. As such, we would want to be wary and disregard such labeling, unless the speaker can actually point at behavior on the bench (separate from the rulings) that could reasonably be defined as 'Judicial Activism'.
Occasionally, I've read the opinions of the Supreme Court, and, although I may find either the ruling or the dissent more compelling, what I've really grown to appreciate is how, to a large degree, either side of the argument is reasonably sound, based upon the body of law. What differs between them is exactly which precedent, which aspects of Constitutional interpretation the particular judge wishes to emphasize. Often, as near is I can tell, either side of the issue is valid (for our law is not nearly so logically tight as mathematics, and contains within it logical contradictions and fallacies) – we may feel from an outcome standpoint that one interpretation will better enable our continuing realization of a just and fair society, or one interpretation will benefit us, based upon our position within society, but those are value judgments as to what is most important. Judges make those too, and although my values and their values disagree, that doesn't make them wrong or activist. (Certainly I would like their values to agree with my values, I hold my values because I do believe them best, but proving the matter is considerably more tricky, so I must also hold that there is a small possibility that I don't have the absolute best value set, and perhaps I can learn (and improve) from their differing viewpoints.)
However, I've been reading the Supreme Court ruling on Citizens United vs FEC, and in Justice Steven's dissent, I've actually found what could be a strong basis or criteria for determining Judicial Activism. What separates this dissent from others I've read is not just that Steven's disagrees with the logic or the conclusion, he actually disagrees, from a very fundamental standpoint, on the approach that led to the ruling.
The first was scope. Justice Stevens points out that the case before them did not constitute a 'facial' challenge to the unconstitutionality of the law governing election expenditures (specifically, that the law amounted to a ban on corporate free speech, or that such speech is even protected under the First Amendment): Rather, the challenge was whether the 'As applied' ruling against Citizens United violated their right to speech protection, and why. By widening the scope of the case (and calling back the parties for a second set of oral arguments), the Court itself violated its own long standing precedent or only deciding the matter at hand. Justice Stevens words:
“‘It is only in exceptional cases coming here from the federal courts that questions not pressed or passed upon below are reviewed,’” Youakim v. Miller, 425 U. S. 231, 234 (1976) (per curiam) (quoting Duignan v. United States, 274 U. S. 195, 200 (1927)), and it is “only in the most exceptional cases” that we will consider issues outside the questions presented, Stone v. Powell, 428 U. S. 465, 481, n. 15 (1976). The appellant in this case did not so much as assert an exceptional circumstance, and one searches the majority opinion in vain for the mention of any. That is unsurprising, for none exists.
Setting the case for re-argument was a constructive step,but it did not cure this fundamental problem. Essentially,five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.
The second widening of the scope was to declare the whole statute unconstitutional, rather than just the portion that reached too far. Justice Stevens again quotes previous rulings where the court restrains itself from overreaching:
The unnecessary resort to a facial inquiry“run[s] contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Washington State Grange, 552 U. S., at 450 (internal quotation marks omitted).
The bigger problem here, as Justice Stevens points out, is that the case before them was not one of many challenges. The court hadn't decided on previous cases that parts of the statute were unconstitutional, and with every ruling it was becoming more apparent that no application was constitutional, rather, there was absolutely no history of any portion being invalidated or proving to have a deleterious effect on free speech across broad swaths of the population. Nothing had been brought before the court as to the effects of BCRA §203 on any other entity: Corporate or Union or other.
As if it were not distressing enough that the Court committed these two transgressions, the case brought before them actually provided for alternative rulings on narrower grounds
“without toppling statutes and precedents. Which is to say, the majority has transgressed yet another “cardinal” principle of the judicial process: “[I]f it is not necessary to decide more, it is necessary not to decide more,” PDK Labs., Inc. v. Drug Enforcement Admin., 362 F. 3d 786, 799 (CADC 2004) (Roberts, J., concurring in part and concurring in judgment).”
(Notice how this very pronouncement of the Court's principles was articulated by Justice Roberts, who decided to violate his own statement in this case!)
The final overreach of the Court was the broad overturning of precedent. Justice Stevens builds a strong argument as to why the precedents in this case do not require overturning, and shows that the majority doesn't build a counter argument as to why precedent needs to be disregarded. As Stevens points out, too, overturning precedent requires a rather strong argument. He counters the majority claim that, in particular, one of the precedents is 'destabilizing', by observing that what the majority appears to be arguing is that “the theory seems to be that the more we utilize a precedent, the more we call it into question.”
Of course, precedent is not sacrosanct – it can't be, otherwise previous rulings that really were wrong couldn't be overturned. Overturning precedent alone wouldn't be cause to label a judge activist.
However, the ability to disregard precedents in this case was a direct result of the proceeding three transgressions of the Court. Without the changes to the scope, the change from an 'as applied' challenge to a 'facial' challenge, and the willingness to explore rulings not even sought by the plaintiff, the ability to reconsider and overturn nearly 100 years of precedent wouldn't have been an option. But, by these structural changes, the court was then able to go in, and with a “sledgehammer, rather than a scalpel,” sweep away broad swaths of federal and state statutes, all in the name of equating a corporation to a natural person for the purposes of application of the First Amendment.
Most unfortunately, it was those precedents that had distinguished between the two, and attempted to build campaign finance laws that respected the different places people and corporations inhabit vis a vis our political process. Those precedents recognized that while you and I might give money to further a candidate or a cause, and through established transparency, know who joined with us and who gave to opposite causes, they also recognized that corporations, through their very lack of transparency, could not give money and profess to speak for all the individuals within the corporation. (Despite what was the intent, a corporation is run by an oligarchy – it is not a democratic institution as we recognize such, and the influence of its rulers can give them what amounts to multiple voices in our political process, something we clearly would want to curtail if not eliminate.)
A lot more could be said (and Justice Stevens says a lot more in his dissent), but for our purposes, we are finished. We now have a working definition of a Judicial Activist. It is a Judge who disregards judicial precedent: Not the precedent of previous rulings (Stare Decisis), but the precedent of How the Court Operates. It is a Judge who makes a ruling outside of the bounds of the case brought before them, who broadens the case to strike down large swaths of law rather than the law affecting the litigants, who decides more than needs to be decided (who shows a lack of deference to established rulings and established procedures and the wisdom of their antecedents.)
Slight changes to these, too, would not allow us to label a judge 'Activist'. For there are reasons where a judge may overturn precedents, may slightly expand the scope, special circumstances where more may need to be decided: It is the combination of more than one, and the decidedly large departures from the case brought before them that would allow us to label a judgment 'Activist'. Repeated departures would then require us to label a Judge guilty of Judicial Activism, and furthermore, we would know exactly what we meant when we so labeled them.
In deciding Citizens United vs FEC the way they did, I accuse Justices Roberts, Scalia, Kennedy, Alito, and Thomas of Judicial Activism – of departing from the methods we expect and depend upon our Judiciary to decide the cases before them, and reaching not simply a conclusion to which I disagree, but a conclusion that is incorrect, precisely because it was incorrectly achieved.
And you now know exactly what I mean when I level that charge.
(Footnote: You can read the entire ruling here. If you do, and think I've overlooked something important, please let me know! It's 176 pages long – by far the longest ruling I've ever attempted. It seemed to me worth the effort, although somewhat depressing in the enshrining of corporate 'personhood' it appears to grant – something I feel is antithetical to both our concept and the needs of a working democracy. However, that should rightly be the subject of another essay.)
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