The End of Restraint

Article excerpt

Byline: Stuart Taylor Jr.

Alito, Roberts, and judicial modesty.

The Supreme Court's five conservatives are properly protective of American citizens' First Amendment rights to spend as much of their money as they wish on political speech, both individually and by funding nonprofit advocacy groups. But this was no justification for the court's blockbuster, precedent-smashing Jan. 21 decision unleashing corporate executives to pour unlimited amounts of stockholders' money--without their consent--into ads supporting or attacking federal candidates. Indeed the 5-4 decision would allow any big company to spend a fortune attacking candidates whom many, or even most, of its stockholders would rather support. And corporations--including multinationals controlled by foreigners--will spend money on elections not to advance the political views of their stockholders, but to seek economic advantage.

So the court's decision strikes me as a perverse interpretation of the First Amendment, one that will at best increase the already unhealthy political power of big businesses (and big unions, too), and at worst swamp our elections under a new deluge of special-interest cash. More ominously still, Citizens United v. FEC lends credence to liberal claims that all five of the more conservative justices are "judicial activists," the same imprecation that conservatives have for so long--and often justifiably--hurled at liberal justices.

Judicial activists--at least as I define them--are judges who are unduly eager to aggrandize their own power and impose their own policy preferences on the electorate. They invoke farfetched interpretations of the Constitution to sweep aside democratically adopted laws and deeply rooted societal traditions. I'd hoped that Bush-appointed Chief Justice John Roberts and Justice Samuel Alito, who came across in their confirmation hearings as believers in judicial modesty, would bring a healthy dose of restraint to a court long populated by activists, and would thereby shun sharp lurches to the ideological right. It appears that I misjudged them.

I don't accuse the conservative justices of being any more activist than the liberals, who are all too eager to promote their own ideological agendas. But the conservatives have booted away any standing that they may once have had to pose as the guardians of judicial restraint. …