Activist Judges on the Political Right

Should you be interested, I would like to direct your attention to Jeffrey Toobin's article in the May 21st New Yorker, which should be on news stands now, or perhaps you have it about the house somewhere.  It discusses the Citizens United case which was brought before the Supreme Court in 2009 and, then, a second time in 2010.  You might remember this Supreme Court decision as one that allows corporations to spend buckets of money on political campaigns ("Corporations are people, my friend") and, in essence, equated money with speech, when one might have naively believed that speech should be equated with speech (but I digress).

In any event, what you might not know is how Chief Justice Roberts took an extremely narrow challenge to the McCain-Feingold campaign finance law and finagled the final outcome of the Citizens United case into something utterly and completely different, wide-reaching and all-encompassing, that nobody was challenging.  That's right, Chief Justice Roberts, with a healthy assist from Justice Kennedy, got a little judicially active.  Anyway, my point is only this - the next time you hear the phrase "activist judge" being tossed around by somebody on the political Right (and you will hear it in the next five months, I suspect, over and over and over again, true or otherwise), it might be handy to have this in your back pocket.  Then you could inquire, if you were so inclined, as to why this specific instance of judicial activism was not a problem.


IBL:mm