Bleak outlook for the new Supreme Court term

As legislators return to the Supreme Court bench, those who abhor judicial activism have little to which they can look forward. Photo: Campaign contributions/ AP

WASHINGTON, October 13, 2013 — The Supreme Court just began a new session, and some justices are already overlooking the Constitution, in favor of legislating from the bench. On Tuesday, during the McCutcheon v. Federal Election Commission oral arguments, several justices seemed more concerned with policy than constitutionality.

The issue being considered in McCutcheon v. FEC is the constitutionality of limits on certain political contributions, although some justices acted as though the issue is whether or not large political donations are ethical.  


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The Court’s liberal justices indicated their favor of the limits for policy-related – not constitutional – reasons. Justice Elena Kagan seemed concerned that loosening the limits would precipitate considerably more money being given by big donors. By expressing such views, she is focusing on the outcome of striking down policy, not the policy’s constitutionality.

When the constitutional validity of legislation is at issue before the Court, only two factors should be considered by the Court. The first is standing. The parties in the case must have standing in order for the Court to rule on the legislation. The second is constitutionality. If the law is constitutional, it must be upheld. If not, it must be stricken. Debates on constitutionality are usually intricate, and rarely does a unanimous consensus occur.

Unfortunately, justices frequently take a legislative hand in the process. Rather than concerning themselves with the law’s constitutionality, they consider the policy implications, and rule on that basis. That is the role of the legislature, not of the judiciary. When justices act in this way, they are displaying judicial activism.

Judicial activism commonly includes components of interpreting the constitution using modernity, the needs of the nation, and personal policy preferences.  Accordingly, judicial activism is in direct conflict with the constitutional power delegated to the Court. The Court’s duty is to rule on the basis of constitutionality, and nothing else.


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On Tuesday, onlookers did not see a Court concerned with constitutionality. Several justices were more concerned with the law’s policy implications. Justices Ruth Bader Ginsburg and Stephen Breyer indicated that raising limits on donations could cause small donors to feel as though their voices are ignored. This has nothing to do with constitutionality. Rather, this is a concern about policy.

Justice Antonin Scalia retorted “I assume that a law that only prohibits the speech of 2 percent of the country is OK,” hinting at the constitutional absurdity which would result from the other justices’ judicial activism.

Justice John Roberts explained that while he understood the need for limits to resolve high sums of money from few donors, he was concerned about the constitutional implications. He thereby returned the discussion from policy to constitutionality. “I mean you can’t pretend that is pursued with no First Amendment cost.”

Good laws can be unconstitutional, and bad laws can be constitutional. The Court’s duty is to ensure “each branch of government recognizes the limits of its own power” and strike “laws that violate the Constitution.” Congress’s duty is to determine beneficence caused by a law’s enactment and potential malevolence which could result from its removal, although Supreme Court justices often act as though they share in this responsibility.

The Supreme Court has a long and unsettling history of overlooking their duty of determining constitutionality, in favor of promoting policy they favor. If the justices’ behavior during these oral arguments are any indication of their actions during the remainder of the term, those hopeful that the Court was moving away from judicial activism will likely be disappointed.

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Politico.com provided source material for this story


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