Judicial Activism

In an editorial, the "Court's Aggressive Term," The New York Times tags the Roberts Court as one that is increasingly bent on overturning precedent that its conservative majority has never had much use for, especially precedent that hampers rights of corporations.

Citing Chief Justice John Roberts' concurring opinion in Citizens United v. FEC (the 5-4 decision which found unfettered First Amendment rights for corporations to funnel profits into campaigns), The Times editorial board notes, "Explaining why the court's five-vote majority in Citizens United had toppled precedent to reach its decision, Justice Roberts wrote that the court must be willing to depart from a previous decision if it thinks it does damage to a constitutional ideal, and particularly if the precedent was an aberration. A decision can become an aberration, it turns out, if the court's conservatives never agreed with it in the first place. If not quite legislating from the bench, this is not a formula for stability."

The Times editorial took note of Justice John Paul Stevens' blistering dissent in Citizens United, where the now-retired justice slammed the Roberts' majority for blazing "through our precedents" in a "dramatic break from our past."

But as jarring as Citizens United was, it wasn't the only aggressive action taken in favor of corporate interests this past term by the Roberts Court. The Times noted that late in the term the Court, in that "was nothing other than judicial activism," shoved itself "directly into the gubernatorial race in Arizona, cutting off matching funds to candidates participating in the state's campaign finance system. The message to other states was clear: Watch out. When the Roberts court has a goal in mind, niceties like an actual political campaign cannot be allowed to get in the way."

The Court's "deference to corporate rights found in Citizens United," the editorial continued, "could also be seen last month. The court made it harder for consumers and workers to challenge the mandatory arbitration clauses found in so many contracts, all designed to keep the fate of corporations out of the hands of judges and juries. When that mindset is combined with the court's willingness to defy precedent and Congress, it could spell trouble for the national health care law when legal challenges reach the court."

For more analysis of the high court's recent term, see video of the ACS Supreme Court term review. Also, the Brennan Center's Monica Youn talks with ACSblog about the ramifications of the Citizens United decision here. Finally for analysis of the Court's opinion in the arbitration contract case referenced by The Times editorial, see an ACSblog guest post by George Washington University law professor Alan B. Morrison here.

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By Glenn Sugameli, Staff Attorney, Defenders of Wildlife's Judging the Environment 

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"Conservatives' court-packing ploy," an op-ed by Professor William Marshall, explained how Republicans'

"judicial activism" mantra has been inordinately effective in shaping the debate over judicial nominations. It has allowed them to push through deeply conservative nominees [and] changed the course of American jurisprudence from one based on advancing principles of equality and liberty to one centered on protecting wealth and privilege. The replacement of Justice Stevens stands as an opportunity for Obama to begin the process of returning our understanding of the Constitution to its essential moorings.

E.J. Dionne Jr.'s Washington Post column described how "the conservative intellectual offensive" has transformed

our discussion of the judiciary. That is why the coming clash over President Obama's next Supreme Court nominee ... must be the beginning of a long-term effort to expose how radically conservatives have altered our understanding of what the Supreme Court does and how it does it. Above all, it should become clear that the danger of judicial activism now comes from the right, not the left. It is conservatives, not liberals, who are using the courts to overturn the decisions made by democratically elected bodies ....

Accounts of right-wing judicial activism have focused on the Roberts' Court's opinions, and properly so. For example, my April 13th ACSblog guest post explained how laws that protect people and the environment are "threatened by activist Supreme Court Justices with agendas that result in plurality and bare majority opinions that are overly broad, unwarranted, and ignore or overturn established precedent."