The simple answer is no, the Citizens United decision was not an activist Supreme Court decision. The Citizens United decision upheld the principle that organized groups, whether they are corporations, unions, or for that matter groups such as the National Organization of Women, a corporation, have the right to engage in political speech and political activism in the form of supporting candidates and causes with money and in-kind support. Citizens United upheld the Constitutional principle of the right to assemble and to seek redress of grievances. By rendering their decision, the Supreme Court upheld the right of any group, which by definition would mean any organization made up of three or more people, to express themselves politically.
Big money in politics is certainly a problem, whether the money emanates from a corporation, from billionaires such as Sheldon Adelson, George Soros, or from the Koch brothers, from foundations such as the Ford Foundation or the Tides Foundation, or from any other combine of wealth seeking to influence politics. This is a complicated problem but the answer is not to ban political speech or political expression. Money, in these cases, is used as a means to amplify political expression by supporting candidates and purchasing media. How to address this issue without interfering in constitutionally protected speech is a question for another column. The focus here is on whether Citizens United was an “activist” decision as claimed by various liberals.
Judicial activism has taken on a bad name in recent decades which is why some liberals are desperately trying to find a judicial case that has been decided by conservative jurists that they can label as activist. Indeed, liberals have proudly supported an activist judiciary going back to the 1935 attempt by President Franklin D. Roosevelt to “pack” the Supreme Court after the court declared the NRA to be unconstitutional. One of the champions of Roosevelt’s court packing scheme, a high level official of his administration and a well-regarded progressive, was Alger Hiss. Roosevelt’s court packing scheme energized conservative opposition to judicial activism, a position that has consistently remained as a conservative cause ever since. Recently pollster Frank Luntz promoted the issue quite eloquently when he drew a contrast between the more conservative advocacies of a democratic judicial approach versus the authoritarian liberal view on the role of an activist judiciary.
What is judicial activism and why do liberals, going back to Roosevelt’s court packing scheme and the Warren Court, support it? Judicial activism occurs when judges make decisions based upon factors and principles that are either outside the purview of the Constitution or that outright contradict its meaning and intent. In other words, judicial activism occurs when judges make laws from the bench either by contorting or ignoring the Constitution. The Constitution, both the US and the state constitutions, holds that elected representatives should make laws based upon the will of the citizens who elect them. Those laws are subject to review by federal and state judiciaries charged with determining the constitutionality of those laws.
Liberals prefer that judges, as opposed to legislatures, make laws since judges are appointed and not elected. Judges don’t reflect the will of the people, they don’t have to be popular, and this insulates them from criticism when rendering decision. Judges making laws is cleaner and simpler than the messy and laborious process of electing representatives who might pass liberal laws. It’s easier to have a sympathetic and unaccountable appointed Judge create a law out of thin air by simply declare something legal. This is better than going through the annoying process of debating and issue and being called on to present a reasoned arguement. The liberal approach is obviously the very essence of authoritarianism which is why they find it to be so appealing.
A popular urban myth regarding Citizens United is that the Supreme Court declared corporations to be “people.” This is a complete lie. There is no record today or historically of any court declaring corporations or any group to legally be a person. The principle underlying Citizens United is, to re-iterate, that individuals have a right to organize, or to voluntarily “assemble” to use the constitutional term, and to then, as such, express political opinions and take political actions. In this sense, the group, or the “corporation” has the same right as a person to express political opinion but it is an absurd stretch to claim that therefore the court views a voluntary group, or a “corporation” literally as a person. Perhaps liberals are imposing their own collectivist view in the way they see this. At any rate, this corporation as a person accusation is completely false.
Since liberals cannot rationally argue that Citizens United is activist, and since they cannot find any other example of a conservative judicial opinion that is activist, liberals have resorted to the lie that the conservative judges on the Supreme Court, when rendering the Citizens United decision, ruled on an issue that was not a part of the original case before them. This is another falsehood, a complete lie that is repeated over and over again. I defy anyone to demonstrate the evidence that this is correct.
Besides lying about the case by claiming that the process of deciding the case was “activist” as a means of avoiding the case itself, which was obviously not activist, liberal commentators are challenging the legitimacy of the entire edifice of the independent judiciary with this sort of charge. Judges, in order to maintain their independence, must be free to exercise the maximum degree of leeway in terms of how they deliberate on cases before them. Only the decision itself can be deemed to be either activist or constitutional, not the means by which the judges arrive at their decision. This line of reasoning is essentially an attack on an independent judiciary.