George Washington University Professor Jeffrey Rosen, the perceptive scholar and popular critic of the Supreme Court, has a curious column out in the New York Times.
In it, he argues that if Chief Justice Roberts entertains a broad ruling in Citizens United v. FEC, overruling Austin v. Michigan Chamber of Commerce and McConnell v. FEC on a 5-4 vote, he will become a “conservative Earl Warren,” a “polarizing” figure. Rosen argues that the Warren Court’s decisions on criminal procedure, consistently decided on 5-4 and 6-3 votes, made Warren “the symbol of judicial arrogance.” In particular, Rosen cites Miranda v. Arizona (“you have the right to remain silent; you have the right to an attorney…”), Mapp v. Ohio (the exclusionary rule for evidence); and Escobedo v. Illinois (the right to an attorney during police interrogation).
Wow. This is really an example of praising with faint damns. It is hard to imagine three cases more firmly embedded into our legal firmament than those three. Indeed, within 20 years of Miranda, the Reagan Administration Justice Department argued that the case should not be overruled. Virtually every American knows and approves of Miranda after seeing it featured for years on television crime shows.
Moreover, all three cases overturned practices far more embedded in our culture than those at issue in Citizens United. Prior to passage of the McCain-Feingold law in 2002, it had never been accepted that corporate speech about political issues, outside of candidate advocacy, could be limited. And prior to Austin in 1990, prohibitions on corporate candidate advocacy had never had any real bite, while even today more than half the states allow independent corporate expenditures in state political campaigns. Conversely, the three criminal law decisions mentioned by Rosen all overturned years of settled practice across the country.
What these cases show, I think, is that “judicial activism” is seen when judges are perceived to be engaging in unprincipled, results oriented jurisprudence – acting as legislators, rather than judges. But well reasoned judicial decisions overturning past rulings or finding laws unconstitutional, even if sparking a short term fury, will soon gain broad acceptance and become part of the settled fabric of constitutional law.
Rosen also makes the curious appraisal that the great Chief Justice John Marshall was a model of the “modest” jurist, and that Roberts should seek to emulate Marshall. In fact, Marshall greatly expanded the power of the Court and established firmly the Court’s right of judicial review. This is, in fact, mainly why he is looked on as such a great justice.
Back to the instant case, Rosen overlooks the fact that Austin and McConnell themselves each abused precedent, not just Buckley v. Valeo but also cases such as FEC v. National Conservative Political Action Committee, Bellotti v. First National Bank of Boston, and Citizens Against Rent Control v. City of Berkeley.
In fact, it’s only been a few years since the campaign finance “reform” community was explicitly arguing the need to “overrule Buckley.“ Now, with the Court looking at righting some serious constitutional wrongs by overruling two less enduring precedents, they are suddenly alarmed over the Court’s lack of “respect” for precedent, regardless of the merit of that precedent. They are trying to win this battle with a characature of “judicial restraint.” But judicial restraint has never held that any old opinion must be respected. It holds only that past rulings should not be lightly overruled. Here, the Court has moved with excruciating slowness to reassert core First Amendment doctrines and repair the Constitution from the damage the Court did to the First Amendment between 1990 and 2003. At every step it has been moderate and restrained. But each careful step only makes clearer the mistakes of Austin and McConnell. It is appropriate for the Court to overrule these cases. If Citizens United is eventually remembered as the Roberts’ Court equivalent of Miranda, well, that would be pretty good company.