Conservatives embrace judicial activism in campaign finance ruling (Chemerinsky | LAT)

[struggle4progress]

The Supreme Court's decision in favor of corporate spending in elections makes previous rhetoric laughable.
By Erwin Chemerinsky
January 22, 2010

The Supreme Court's 5-4 decision holding that corporations and unions can spend unlimited amounts of money in election campaigns is a stunning example of judicial activism by its five most conservative justices. In striking down a federal statute and explicitly overturning prior decisions, the court has changed the nature of elections in the United States. At the same time, the conservative justices have demonstrated that decades of conservative criticism of judicial activism was nonsense. Conservative justices are happy to be activists when it serves their ideological agenda.

Since Richard Nixon ran for president in 1968, a central feature of Republican and conservative rhetoric has been to attack judicial activism. The phrase is never defined with any precision and has often been used to refer to decisions that conservatives simply don't like. But if judicial activism has any meaning, it surely refers to decisions that overturn laws and overrule precedents. In contrast, judicial restraint occurs when courts defer to the other branches of government and follow precedents ...

For years, conservatives have argued that judicial restraint requires deferring to the choices of the elected branches of government. No such deference was evident when the court's five most conservative justices struck down this provision of the McCain-Feingold law on Thursday.

Nor did the decision defer to judicial precedent. In 2003, in McConnell vs. Federal Election Commission, the Supreme Court in a 5-4 decision upheld this same law. In fact, in an earlier case in 1990, the court said that legislatures may restrict corporate spending in election campaigns. The court's decision on Thursday expressly overruled these decisions ...

http://www.latimes.com/news/opinion/la-oe-chemerinsky22-2010jan22,0,5829403.story?track=rss