The Activist Roberts Court

Original Link: http://blog.kiplinger.com/politics/2009/09/the-activist-roberts-court.html

By Mark Willen

It is now widely expected that the Supreme Court will overturn decades of legal precedent and congressional intent later this month and allow unlimited corporate spending to sway elections. If it does, it will remove any pretense that Chief Justice John Roberts and his conservative colleagues are anything short of "activists."

When many Republicans voted against Sonya Sotomayor's nomination to the high court, they cited concerns that she was an activist who would "legislate from the bench." Conservatives insisted judges should be strictly limited to interpreting the Constitution and the laws passed by Congress, not making new ones. But don't expect those conservative Republicans to object if the Court rules that limits on campaign spending by businesses and advocacy groups incorporated as businesses are a violation of the First Amendment's free speech guarantees.

At the hearing Sept. 9, Roberts and several of his conservative colleagues openly questioned Supreme Court rulings dating back more than 100 years, including the two most recent in 1990 and 2003. Never mind that Roberts, in his own confirmation hearings, spoke eloquently of the importance of precedence, saying that reversals of long-standing decisions can send a jolt through the legal system.

Not all Republicans favor overturning existing law. Sen. John McCain, the chief GOP sponsor of the McCain-Feingold law, told reporters after the hearing in Citizens United v. Federal Elections Commission that he was troubled by the "extreme naivete" of some of the justices about the role of special interest money in elections. In their questioning, the five conservative justices -- Roberts, Samuel Alito, Antonin Scalia, Clarence Thomas and Anthony Kennedy -- showed near complete disdain for congressional intent in passing laws restricting corporate giving. Scalia has even suggested that Congress' intent is irrelevant since lawmakers are interested parties in the issue.

Supporters of the restrictions are still hoping the court will rule narrowly, deciding that the particular example before them -- a highly critical movie about Hillary Clinton -- is permissible because it's not the kind of speech intended to be covered by the law. But the conservative five showed no inclination to keep their ruling narrow.

The court's increasing willingness to reverse precedent has already put it on a collision course with Congress, which has moved to the left in the past few years just as the court has moved to the right. Expect many more confrontations in the years ahead.

Jeffrey Rosen, a liberal law professor at George Washington University, says the choice is really up to Roberts. In an op-ed piece in the New York Times earlier this month, he gave Roberts a mixed grade in his stated goal of fashioning more consensus on the court. Rosen noted that Roberts had expressed a desire to emulate the modesty and unanimity of the great Chief Justice John Marshall, and warned that if he uses the campaign finance case to push through a sweeping decision on a narrow 5-4 vote, he risks being remembered instead as the conservative version of Earl Warren. It's a warning that Roberts ought to take seriously.