Bench Memos

Judicial Excuses

Is it “judicial activism” to forbid the government from censoring a movie? This is not a trick question. Critics of the Supreme Court’s decision in Citizens United v. FEC have been calling it one of the worst examples of judicial activism in history. But Citizens United involved a law passed by Congress that prevented a nonprofit from making a film that criticized a candidate during an election. If that was not a law barred by the First Amendment, then it is hard to understand what “Congress shall make no law . . . abridging the freedom of speech” means. Far from engaging in “judicial activism,” the Supreme Court in Citizens United practiced something courts should be doing every day: “judicial engagement.”

Judicial engagement may appear extraordinary because judges do it so rarely today. But it is simply what happens when judges do their job by independently considering whether a law complies with the Constitution.

This is a critical responsibility in our system of government. As Alexander Hamilton argued in the Federalist Papers, the courts are “the bulwarks of a limited Constitution against legislative encroachments.” If judges are not ready to seriously examine whether laws comply with the Constitution, then politicians can violate it with near impunity. All we are left with is self-restraint on the part of elected officials — and we all know how that story ends.

The opposite of judicial engagement — “judicial abdication” — is the real worry. That is what happens when judges fail to perform their job. All too often judges abdicate their solemn duty to determine whether a law complies with the Constitution. Instead they “defer” to the government. Proponents of overreaching governmental power praise such behavior as “judicial restraint.” But far from commendable “restraint,” this dereliction of duty all too often looses the reins on the government’s ability to violate your rights.

In the case of Citizens United, the Supreme Court had been allowing the government to run roughshod over the First Amendment for decades. This deferential approach reached its low point in McConnell v. FEC, when the Court allowed the government to ban broadcast communications that mentioned a candidate near an election. As a result, Citizens United was unable to distribute its film, Hillary: the Movie, during the 2008 primary season. As great a victory as the case was, it is a tragedy that Citizens United had to sue to preserve its First Amendment rights and that it was prevented from showing its film for an entire election season. If the Court had been doing its job, Congress would never have had the chutzpa to pass a law banning movies that criticize politicians in the first place.

Remember the story of Citizens United the next time you hear the false alternative of judicial activism versus judicial restraint. What we need is judicial engagement, which is simply another term for following the Constitution.

— Anthony Sanders is an attorney with the Institute for Justice.

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