In a recent speech Senator Sherrod Brown of Ohio unwittingly illustrated the folly of attacks on “judicial activism” by the left and the right. Senator Brown decried the Supreme Court’s opinion in Citizens United because it allowed corporations (and unions, although it does not appear the Senator complained about that result) to speak about elections. He claimed there is no “better example of an activist judiciary legislating from the bench than the Citizens United case.” He said this flew in the face of decades of complaints from conservatives arguing “that liberal courts are making law from the bench.”
Senator Brown is right that conservatives have used the rhetoric of “judicial activism” for years when courts have struck down laws that they like. And many of those same conservatives support the Court when it strikes down laws they do not like, such as the ban on corporate speech at issue in Citizens United. But the same can be said of leftists. They support the Court when it strikes down, for example, bans on flag burning or nude dancing, but excoriate the Court when it defends the right of people to associate in the corporate form and speak, as the Court did in Citizens United.
Here at the Institute for Justice we disagree with both sides. We reject the terms “activism” and “restraint” as they are commonly used as two sides of a false dichotomy. Instead, judges should practice judicial engagement, no matter what the context. That is, they should do their jobs. The First Amendment says “Congress shall make no law . . . abridging the freedom of speech.” It is not “activist” to actually enforce that language. Judges, just like Senators, swear an oath to support and defend the Constitution. Instead of complaining when judges do their job, we should be outraged that many judges, such as the dissenters in Citizens United, vote to uphold laws that violate the Constitution. In short, the real outrage is not judicial engagement, but judicial abdication.
Image source: Cayusa