I have a column on Citizens United in this morning's Milwaukee Journal Sentinel.
Taking the other side, Noah Domnitz wants to argue the the decision was "judicial activism" because it overruled existing precedent and restricted the application of long standing laws prohibiting the spending of corporate treasury money on elections. (I say "restricted" because, after Citizens United, corporations still can't use treasury funds for contributions or coordinated expenditures.)
I disagree. Mr. Domnitz does not define "judicial activism" but seems to equate it with departure from precedent and overturning laws.
This oversimplifies the concept. Judicial restraint suggests that precedent and long standing arrangements ought to be respected, but not that they can never be revisited. It counsels respect for legislative enactments but to allow clearly unconstitutional laws to stand is its own form of activism - a failure to apply what - in our system - is the supreme law of the land.
The majority in Citizens United was well aware of the issues raised by its decision to overrule certain prior decisions and invalidate what was left of the "blackout" provisions of McCain-Feingold. The key case that Citizens United overturned - Austin v. Michigan Chamber of Commerce - is a 1990 decision that has figured in only a few subsequent decisions of the Court. Both Justice Kennedy's majority opinion and Chief Justice Roberts' concurrence go to some lengths to explain that Austin is inconsistent with other decisions of the Court and has not proved to be workable in the intervening years. (As I point out in my column, the ideas that restricting expenditures on speech restricts speech and that corporations have speech rights are hardly new.) Because Austin has figured in relatively few other cases, the majority reasoned, there is no substantial reliance interest cautioning against a change in the law.
Citizens United also invalidated parts of the McCain-Feingold (passed in 2002) and part of the Court's decision in McConnell v. FEC, decided in 2003 and already substantially undercut by Wisconsin Right to Life v. FEC (2007). Both flow from its decision to abandon Austin.
None of the justices have ever said that judicial restraint requires inflexible adherence to precedent. There are reasons to abandon prior cases that were in error and have proved unworkable and inconsistent with other doctrine. The majority carefully considered those reasons and decided that overruling Austin was justified.
To think otherwise, would be to say that, for example, Brown v. Board of Education was an "activist" decision. There are some who think this, but I don't. In my view, Plessy was the decision in which principles of judicial restraint were abandoned. The Court ignored the clear implications of the Fourteenth Amendment in order to avoid disrupting the racial regime in the South. The problem is that, in enacting the Fourteenth Amendment, the people of the United States made it quite clear that regime was to be disrupted - in fact, to be destroyed. The majority ignored that law in order to impose what they (incorrectly) thought was a rule ("separate but equal") that would better serve social peace.
Cross posted at the Marquette University Law School Faculty Blog