Bench Memos

Citizens United and ‘Conservative Judicial Activism’

Blogospheric-commentators’ predictions are, to put it mildly, not worth much.  That said, one can assert confidently, without any fear of being contradicted or proved mistaken, that the Supreme Court’s decision in the Citizens United case will trigger (and has already prompted) a flood of indignant denunciations of “conservative judicial activism.”  The op-eds write themselves, if they are not already written:  “The Court’s ‘conservative’ justices are not true ‘conservatives’ at all.  They refused to defer to the politically accountable members of Congress who enacted the campaign-regulations at issue, and instead aggressively read their own policy judgments into the First Amendment, in order to produce a ruling that accords with their own ideological predispositions.  Where’s the ‘restraint’ now?”  And so on.


The critics, if they really want to turn the “conservative hypocrisy” knife, might say, “how ironic that this overreach is announced the day before tens of thousands of marchers are expected to descend on Washington to protest, yet again, what they regard as the Court’s overreaching exercise of raw judicial power in Roe v. Wade.”


How should those of us who welcome today’s decision — and, in my view, everyone who is appropriately skeptical toward regulations of political and election-related speech should welcome it — respond to these charges?  Do they hit home?


Yes and no.  They do have bite if directed at a “conservative” who purports to believe that federal judges should never invalidate on constitutional grounds acts of Congress or other legislatures.  (Just as the “deference”-loving critics who lob the “conservative judicial activism” attack should squirm a bit when trying to defend “liberal” justices’ hostility to school-voucher programs or bans on partial-birth-abortion.)  But who, really, believes that? 


So, can one endorse Citizens United (as I do) while criticizing (as I do) Roe v. Wade?  Sure.  (“Do you believe in infant baptism?” “Of course, I’ve seen it done.”)  What’s wrong with Roe — besides the fact that it constitutionalized an ersatz right to cause the death of another, vulnerable human being — is that it (for the most part) removed by judicial decision from the arena of political debate a crucial and controverted moral question.  Roe distorted, and short-circuited political dialogue, discussion, and even compromise. 


Now, seen from the critics’ perspective, Citizens United probably does the same thing, in that it tells those who (mistakenly) think that discomfort with the tone of election-related speech provides a justification for regulating or silencing that speech that the First Amendment does not permit them to write their squeamishness into law.  The case is better understood, though, as a vindication of political freedom:  In a free society, politics is messy.  Roe was an attempt, but a dramatic failure, to tidy up politics by telling the pro-life side, in the name of the Constitution, to be quiet and go home.  Citizens United, by contrast, tells those whose lives are made easier by laws that censor their critics, “listen!”, and tells the rest of us, “speak up!”


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