Lack of restraint

One of the "highlights" of the State of the Union address -- from the perspective of journalists -- was President Obama's sharp criticism of the Supreme Court's recent 5-4 decision in Citizens United v. Federal Election Commission, 558 U.S. ___ (Dkt. No. 08-205, Jan. 21, 2010), and, even more delectable, Justice Alito's facial reaction to the criticism.

Justice Kennedy's opinion on behalf of the Court in Citizens United is 64 pages long (in slip opinion format), accompanied by separate concurring opinions from Chief Justice Roberts and Justices Scalia and Thomas -- each with a different take on what was being decided -- and by a 90-page dissenting opinion from Justice Stevens on behalf of the four so-called liberal justices. The combined length of this multitude of opinions is 183 pages. The whole mess will be analzyed at great length in law review notes and articles over the coming months and years. I won't presume to attempt an analysis in a multi-paragraph blog posting.

I just want to comment on a basic point brought up in Justice Stevens's dissent, and on its implications. Justice Stevens points out, at some length, that the Court generally follows certain rules in accepting and deciding appeals -- it avoids overruling its own prior decisions unless circumstances have changed sufficiently to make such an overruling necessary, and it decides issues as narrowly as possible (e.g., it doesn't declare an entire statute unconstitutional if the statute can be saved by invalidating just one clause). Neither rule is unbreakable, but the Court generally gives a good reason for breaking them. (For example, in 1954, in Brown v. Board of Education, overruling an 1896 opinion upholding equal but segregated schools, the court held that events since that date had made it clear that separate schools were inherently unequal.)

In Citizens United, the Court stretched to resolve a matter that it did not have to resolve, and it overruled a century of developing constitutional law, including a decision it had handed down as recently as 1990, and a portion of one decided in 2003; it also, in effect, overruled all subsequent decisions relying on the 1990 ruling. As Justice Stevens points out:

The only relevant thing that has changed since [its earlier contrary decisions in] Austin and McConnell is the composition of this Court. Today’s ruling thus strikes at the vitals of stare decisis, "the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion" that "permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals."

What's interesting is that the rallying cry of both political conservatives and judicial conservatives has long been "judicial restraint." By judicial restraint, lawyers mean judicial non-activism -- deference to the decisions of Congress and reluctance to hold legislation unconstitutional; adherence to existing law and past judicial decisions when interpreting and applying that law; insistence on resolving any specific appeal on as narrow a ground as possible, giving maximum deference to the fact-finding functions of the trial judge.

That the Roberts court ignored these principles in Citizens United, suggests that the Roberts court is not a "conservative" court but a "radical" court. It is unwilling to let the law develop in a slow and orderly manner. It is unwilling to give deference to its own past precedents. It is unwilling to give deference to Congress.

It thus shares certain characteristics with the "liberal" courts of the past, such as the Warren court that abolished segregation in schools and, subsequently, in other aspects of public life. Its "conservatism" is not a judicial conservatism, but a radical political conservatism. The Roberts court is willing to bend the rules, to be activist, to overrule Congress, and to rebuke trial courts -- not in pursuit of individual rights and liberties, however, but in order to promote the business and political interests of certain elite segments of the population, segments of the population that seemed to be doing just fine without the aid of the Supreme Court.

The Court has returned, moreover, to an approach made infamous in the early 20th century -- that because the law chooses to treat corporations as "persons" for certain purposes, in order to protect their investors from unlimited financial liability, corporations must therefore be treated as persons for all purposes. Corporations, therefore, are to be guaranteed first amendment rights identical to those protecting you and me and Mr. Jones across the street. The Court abandoned this approach at least by 1936, during the New Deal. Who'd a thunk it would return to haunt us in 2010?

For any voter tempted to throw up his or her hands at the frustrations produced by our political system, to shout "a pox on both your parties" and refuse to vote -- I suggest that he or she consider how much difference the appointment of just one new justice can make to the future direction of our legal institutions -- and of our Nation.

The look on Justice Alito's face while listening to the State of the Union was the infuriated expression of a politician being challenged It was not the dispassionate restraint of a scholar and judge.