Tomorrow, the U.S. Supreme Court will re-hear a case it heard back in March, Citizens United v. Federal Election Commission. Intelligent, principled people can disagree on the particulars of the case; this post isn't about those particulars. It's about the judicial process.
Re-hearing a recent case is very unusual, and it often indicates that the court is strongly considering overturning a previous precedent.
Conservatives are famous for preaching about the dangers of "judicial activism" -- overstepping the role of a jurist and attempting to create new law -- and often criticize liberals for supposedly practicing it. Yet if the supposedly-conservative court rules in favor of Citizens United in this case, it will reverse a century of precedent and overturn federal law.
This is not unlike the recent case DC v. Heller, in which the court overturned both law and long-standing precedent to change the gun laws in the District of Columbia.
I might also ask those conservatives to stand up who disagree with the ruling in Brown v. Board of Education, which overturned decades of precedent in school segregation and the laws of many states.
All of this gives the lie to the "judicial activism" soapbox speeches. I'm not saying that there's no line between the role of a jurist and that of a legislator. But it's a fat grey line, not a thin red one. Everyone has his or her own idea about what the Constitution ought to say. Ninety percent of the time, when someone says "She's a judicial activist," what he really means is, "She disagreed with me." And of course, if the justice does agree with us, we praise her discernment in seeing through to the true, authentic meaning of the beloved text.
So let's just admit it, and let's have a conversation about where that line is and where it should be. But enough soapbox.
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