Thursday, January 28, 2010

Celebrate Citizens United!

Citizens' United and Judicial Activism

Many are rightfully concerned about the likely effects of the Supreme Court's decision in Citizens United v. FEC.

But one aspect of the case bears celebration and being loudly championed. This Supreme Court was an explicitly activist court, expressly announcing that, when circumstances are appropriate, it is free to overrule long standing precedents and repeated congressional actions and to make new law.

And, especially for individuals, judicial activism is (usually) good! It has been a part of our legal system since long before we gained independence, and the founding fathers embraced it.

“Judicial Activism” is just another name for “the common law at work.”

There are times when judicial activism has forged new law which in turn has very much advanced the needs of our society and individual rights and values.

When we allow courts to act and make new law, we provide an avenue for rights to be secured and respected where the executive and legislative branches have failed to, or been unable to act.

Two examples:

First: At the beginning of the industrial revolution in England, the economy was shifting from a barter based economy to a cash based economy. A cash based society needs a lot more cash (and credit) than a barter based economy

The sovereign and the legislature were, as they tend to be, slow to recognize the need for additional cash or effective merchant based credit.

Merchants responded by creating (potentially) negotiable instruments. Checks, promissory notes, drafts, acceptances.

But without a uniform set of rules for such instruments, their utility was limited.

Along came Lord Mansfield and his fellow "activist" judges. Consulting with merchants, they made up the rules for negotiable instruments, helping in that way to pave the road of the economic expansion made possible by the technology of the industrial revolution.

Second: In the early 1900's, as the automotive industry was getting underway, the then established rule of law for contracts (established by centuries of judicial decisions, and not by legislation) was that one had to be “in privity of contract” with some one to hold them responsible for injuries incurred because of 'mistakes' by one of the contracting parties.

In about 1915, The Donald C. MacPherson, was injured when one of the wooden wheels of his automobile crumbled. Buick Motor Company had manufactured the vehicle It was conceded that the defective wheel could have been discovered by Buick upon inspection. The defendant, Buick, denied liability because the plaintiff had purchased the automobile from a dealer, not directly from the defendant: because MacPherson and Buick were not in “privity of contract.”

The appeals court essentially discarded the rule of “privity of contract” and MacPherson won.

Consider how popular automobiles would have been if they were perceived as dangerous AND that buyers would have no recourse against manufacturing defects. Consider how safe our automobiles would be if manufacturers (and their subcontractors) were not responsible for any defects?

But isn't judicial activism giving too much power to the courts?

Consider the recent case of Kelo v. New London, the eminent domain case in Connecticut.

Regardless of what you think of the merits of that case, the public and legislative responses were swift and sure: many states enacted laws ensuring that the result of Kelo would not occur in their states.

A swift and sure “over ruling” of the decision in that case.

In fact, in all cases (except constitutional cases) legislatures can and often do “over rule” the courts through legislation.

And even in constitutional cases, there is the possibility of constitutional amendment. (BTW, we usually hear about constitutional cases because of their importance, but they are a small fraction of cases heard by courts.

As a general rule, judicial activism advances “liberal” values and beliefs, given that monied interests sometimes (often) control the passage of legislation to accomplish the same thing.

And regardless of their politics, judges (usually) seek to do justice.

So celebrate Citizens United: work to reverse it's effects if you will, but celebrate it and loudly proclaim the positive aspect of this Supreme Court overtly embracing so called “Judicial Activism” - the process whereby even the lone individual can accomplish through the courts what vested interests can block in the legislatures.

See also my posts from last April and May:


  1. I would think that monied interests are usually not served by judicial activism because they normally have accomodated themselves to the status quo.

  2. Ricj, absolutely.

    It has just occured to me that perhaps the "best" judge made law is that which works in a legal vacuum - where societal/technical developments have created a legal vacuum.

    OTOH, judicial activism which oveturns legislative action (as opposed to inaction) is far more problematic.

    But I have to think this one through further....