This is What Judicial Activism Looks Like

When John Roberts was being confirmed as Chief Justice in 2005, he likened his role to an umpire in a baseball game:

Judges are like umpires. Umpires don’t make the rules; they apply them. … I will remember that it’s my job to call balls and strikes and not to pitch or bat.

This was his way of invoking a common conservative trope: that “activist liberal judges” had “legislated from the bench” to create laws that were impervious to repeal through the political process. Roberts was pledging to be a different kind of judge, one who applied the law to the facts the way an umpire applies the rulebook’s definition of the strike zone to the pitch he just saw.

The umpire analogy was always suspect. As Justice David Souter pointed out in his 2010 Harvard commencement speech, cases that can be resolved just by reading the text and applying the facts usually don’t make it to the Supreme Court.

Even a moment’s thought is enough to show why it is so unrealistic. The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.

Constitutional values, Souter recognized, often “exist in tension with each other, not in harmony.” Resolving those conflicts in a way that stays as true as possible to the spirit behind the Constitution as a whole … that requires a judge, not an umpire.

Souter was in many ways the model of what conservatives didn’t want to see in George W. Bush’s judicial appointments: Appointed by Bush’s father, Souter had drifted into the Court’s liberal wing, the wing that conservatives accused of making up laws. Roberts was promising not to do that. He would stay objective, rather than drifting into liberal activism.

When the Court’s McCutcheon v Federal Election Commission decision came out earlier this month, we saw just how ironically things have worked out. The decision, written by Roberts and building on the Roberts Court’s earlier decisions in Citizens United and McComish, is one more step in his completely original remaking (or rather, unmaking) of campaign finance law. John Roberts has become arguably the most activist Chief Justice in U.S. history.

When you read McCutcheon, the most striking thing is the way that Roberts is talking to himself. The precedents quoted are almost entirely those of the Roberts Court itself, many written by Chief Justice Roberts.

Moreover, the only type of corruption that Congress may target is quid pro quo corruption. Spending large sums of money in connection with elections, but not in connection with an effort to control the exercise of an officeholder’s official duties, does not give rise to quid pro quo corruption. Nor does the possibility that an individual who spends large sums may garner “influence over or access to” elected officials or political parties. Citizens United v. Federal Election Comm’n, 558 U. S. 310, 359. The line between quid pro quo corruption and general influence must be respected in order to safeguard basic First Amendment rights, and the Court must “err on the side of protecting political speech rather than suppressing it.” Federal Election Comm’n v. Wisconsin Right to Life, 551 U. S. 449, 457 (opinion of ROBERTS, C.J.). Pp. 18–21.

That bright line between quid pro quo corruption (direct bribery, where a campaign contribution is exchanged for a vote or other favor) and the more general buying of influence — and the idea that the Constitution limits Congress to legislate only on the quid pro quo side of that line — is a pure invention of John Roberts. It did not exist anywhere in law or legal tradition before he joined the Supreme Court.

Roberts also cites an older decision, Buckley v Valeo from 1976, but slides over the fact that he is reversing that decision. Buckley was the Court’s response to the post-Watergate rewriting of campaign finance laws. It upheld the part of the law that restricted campaign contributions, but threw out the law’s limits on campaign expenditures. The Court reached this conclusion via an interesting piece of reasoning that Roberts has completely written over: When a candidate spends money on his campaign, he is exercising his freedom of speech, and the government needs a very serious reason to stop him. But when a contributor gives money to a campaign, he is not himself speaking; contributors are exercising their right to free association, which is also a First Amendment right, but one that is not quite so sensitive as the freedom of speech.

In other words, in 1976 money was not speech.

The 1976 Court upheld the exact kind of restriction that McCutcheon throws out: an overall restriction on the amount of money an individual can give to federal campaigns during a two-year election cycle. So McCutcheon is a reversal, though you will struggle hard to find that fact acknowledged in the text. In Supreme Court tradition, reversals are not done lightly. A major reversal like Brown v Board of Education is a historical landmark, and typically happens only as a last resort. (See David Strauss’ book The Living Constitution for an account of all the ways the Court had tried for decades to make sense of “separate but equal” before recognizing in Brown that it just wasn’t going to work.)

If there is one cardinal symptom of judicial activism, reversal-on-a-whim is it. But Roberts does not struggle at all with reversing Buckley, he simply ignores that he’s doing it. And it’s not just Buckley. In Justice Breyer’s dissenting opinion, he quotes McConnell v FEC, the last major pre-Roberts campaign finance case, which upheld restrictions on soft money contributions:

Plaintiffs argue that without concrete evidence of an instance in which a federal officeholder has actually switched a vote [in exchange for soft money] . . . , Congress has not shown that there exists real or apparent corruption. . . . [P]laintiffs conceive of corruption too narrowly. Our cases have firmly estab­lished that Congress’ legitimate interest extends be­yond preventing simple cash-for-votes corruption to curbing ‘undue influence on an officeholder’s judg­ment, and the appearance of such influence.’

But as Breyer complains, Roberts now quotes Citizens United as if it had reversed McConnell.

Did the Court in Citizens United intend to overrule McConnell? I doubt it, for if it did, the Court or certainly the dissent would have said something about it.

Another major symptom of judicial activism is a judge valuing his own view of reality above that of the legislature. Judges are presumed to be experts in the law. But often a case hangs on not on the law alone, but on facts about the world. Congress can hold months of hearings and require reports from the full apparatus of government, and so is in general better situated to investigate the state of the world than a court is. Within the court system, a district court can spend weeks or months assembling a body of expert testimony, and so higher courts typically defer to a lower court’s findings of fact. In our entire system, no one is more poorly positioned to assess the state of the external world than the Supreme Court.

Non-activist judges realize that.

Lots of reality-based issues enter into campaign finance law: How does corruption really work? How corrupting are various kinds of contributions? How diligently will contributors and political parties look for loopholes in the law? What kinds of legal restrictions are practically enforceable, and which ones require the government to prove intentions that no one can really know? How does the appearance of corruption influence the behavior of voters and the overall health of democracy?

The Bipartisan Campaign Reform Act (BCRA) of 2002 was passed after Congress had assembled massive amounts of testimony and evidence. Moreover, congressmen themselves have direct experience with the temptations towards corruption, and significant interactions with the voters. When McCutcheon came before a district court, that court upheld the law in view of the Buckley precedent, before getting to the evidence-gathering part of the trial. Breyer summarizes:

The District Court in this case, holding that Buckley foreclosed McCutcheon’s constitutional challenge to the aggregate limits, granted the Government’s motion to dismiss the complaint prior to a full evidentiary hearing. … If the plu­rality now believes the District Court was wrong, then why does it not return the case for the further evidentiary development which has not yet taken place?

Why indeed? Is it that Chief Justice Roberts is afraid the facts would get in the way of what he wants to do? Or is he convinced that he already knows everything he needs to know?

Here’s the kind of thing I wish Justice Roberts knew: Last week I was in my home town, where I had dinner with my best friend from grade school. We have argued politics since we were seven, and he is quite conservative today. But we found one issue where we completely agree: No bank should be too big to fail. We agreed that Congress has done practically nothing to fix the financial system after the meltdown of 2008, and neither of us was optimistic that it would.

Why not? Not because the People want banks to be too big to fail. Between the two of us, I believe we represent a fairly broad public consensus on the issue. And not because bankers are delivering sacks of cash to congressmen in quid pro quo exchange for their votes. But the broader influence of big money in politics — the kind that Justice Roberts has placed beyond legal remedy — makes the too-big-to-fail issue unapproachable. Neither I nor my friend is actively pushing for Wall Street reform because … well, what’s the point?

That’s corruption of the political process undermining democracy. And Chief Justice Roberts has decreed that nothing can be done about it.

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  • Amyclae  On April 14, 2014 at 1:27 pm

    To speak directly to your point that Buckley v. Valeo “money was not speech.”

    A few quotes, “Those conflicting contentions could not more sharply define the basic issues before us. Appellees contend that what the Act regulates is conduct, and that its effect on speech and association is incidental, at most. Appellants respond that contributions and expenditures are at the very core of political speech, and that the Act’s limitations thus constitute restraints on First Amendment liberty that are both gross and direct.”

    “A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. [Footnote 18] This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money.”

    “The expenditure limitations contained in the Act represent substantial, rather than merely theoretical, restraints on the quantity and diversity of political speech”

    “In sum, although the Act’s contribution and expenditure limitations both implicate fundamental First Amendment interests, its expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do its limitations on financial contributions.”

    Honestly, I don’t know where you’re getting this idea that Buckely is about anything else. The court simply can’t be clearer. The only thing that could be said to muddy the water is that it considered money restrictions as an infringement of the right to freely associate as well as the right to freedom of speech.

    Which gets to your second claim that McCutcheon is a reversal. Well, no. Quite the opposite.

    “the primary First Amendment problem raised by the Act’s contribution limitations is their restriction of one aspect of the contributor’s freedom of political association. ”

    Buckley is rather straightforward: is the right to associate stronger or weaker than the government interest in preventing the “appearance” of corruption? The court says the right is weaker. But it never discusses substantively whether there is a freedom of speech issue. Interestingly, because this case is the first to identify speech as money (your claims to the contrary aside), because the court is rather obviously leaving open a door to another attempt equating freedom of speech with campaign donations as Buckley has just equivocated speech with money.

    This is back in the days before Sebelius where the court restricted itself to the arguments presented by both sides. It didn’t make up an argument that one side never made to give the side a victory, it waited until the next case/argument came along. Those were crazy times.

    • weeklysift  On April 16, 2014 at 8:02 am

      In the quote you start with, the speech issue is the candidate’s speech, not the contributor’s. Buckley explicitly says that the “speech” involved in a contribution is just “I support this guy”.

    • weeklysift  On April 16, 2014 at 8:08 am

      More specifically: “A limitation on the amount of money a person may give to a candidate or campaign organization thus involves little direct restraint on his political communication, for it permits the symbolic expression of support evidenced by a contribution but does not in any way infringe the contributor’s freedom to discuss candidates and issues. While contributions may result in political expression if spent by a candidate or an association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor. “

      • Amyclae  On April 16, 2014 at 9:38 am

        Thr court literally says in this quote that the statute is a “direct restraint” on his political speech, only that it is “little.” Your profound ability to see what you want is disturbing.

  • joeirvin  On April 14, 2014 at 1:50 pm

    How the matter is parsed, Amyclae, the result is the same: the rich will have the best government their money can buy and the rest of us be damned.

    • Amyclae  On April 14, 2014 at 2:36 pm

      Sure but when you consider this nation excluded virtually all political rights from the poorest while only the richest got the full smorgasbord that’s not so much an observation as it is an empty truism. The 1st Amendment as written, applied and recently decided has rarely if ever been about limitation of any sort. In many ways it’s a good thing. I can, hopefully, speak truth to power free from all but the invidious repercussions. But the flip side is that if I have a right to say whatever I want, as loud as I want, however I want it’s incredibly difficult to start paring that away when I say what I want too loudly to too many Congressmen on too many media outlets. One way has been some arbitrary spending limits, but their practicality heightened rather than obscured their constitutional flaws. Why 10,000 instead of 9,999? Why 9,999 to 9,998? Why 9,998 to…. 100$ as the maximum?

      The only way to ‘fix’ the ‘problem’ would be to either change the 1st amendment or add a new one.

  • TRPChicago  On April 15, 2014 at 11:24 am

    Justice Roberts is willfully blinking away the patently obvious influence money has in politics. “Mother’s milk,” a much more acute politician once called it. That is not to argue that anyone is buying a vote -as such – with huge amounts of donations to campaigns. What one is buying is access, the certainty that one will not be turned away or ignored or discounted when one has a position to press. The very strong likelihood that one will have a disproportionate influence to others who do not give as much, who do not spare the official of the burden of making a lot more calls for campaign donations.

    What C.J. Roberts has done is demand corruption be present and then defined it so narrowly as to fail any sentient person’s red face test.

    If campaign money is equivalent to speech and speech cannot be limited, we are less of a representative democracy. Money talks, all right, and we all listen to what it says … Except for Mr. Chief Justice Roberts.

  • MDavis  On April 28, 2014 at 10:40 am

    Let’s engage in a thought experiment. Dr. Muder is clearly a liberal thus it is reasonable for one assume he’s for typical liberal causes. So let’s use the one I made a prior comment on: Gun Control.

    Would this statement be correct: Dr. Muder would still be for gun control no matter the amount of money or air time the NRA spent in his neighborhood?

    If that above statement is correct, then the entire idea behind campaign finance laws is based on a fallacy. That fallacy is that the reason people get elected is because they spend tons of money.

    No, the reason people get elected is because they spend tons of money AND the population that votes for them is uninformed/uneducated of the issues.

    So the actual problem isn’t that rich candidates can “buy” influence, it’s that the majority of the people who elect said candidates don’t care enough to be informed. Thus, the actual people Dr. Muder and those who are complaining about the SCOTUS have a problem with are not the 9 or 5 justices, it’s their fellow American citizens who are too apathetic to care about an issue and are willing to let the TV do the voting.

    I say this again, if the average American voter would educate themselves about the issues, NO AMOUNT of money would matter in an election, but they don’t. So the campaign finance laws are simply a way of encouraging apathy by the american electorate.

    As an aside. If liberals actually believed in not “buying” the election, they would have supported limits on personal campaign contributes of the sort that Bloomberg did that bought him the NY Mayor’s office. However, nobody really says anything about that on the left, even though it’s the exact same thing, and is caused by the exact same mechanism: Voter apathy.

    The Founders had it right, an educated population is necessary for democracy. Any attempt to blame people OTHER than the voters is just excuse making for bad citizenship.


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