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Channeling Glenn Beck, Alito Tries But Fails to Define 'Judicial Activism'

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U.S. Supreme Court Justice Samuel A. Alito Jr. generated a ripple last week when he announced in a speech to the conservative Manhattan Institute for Policy Research that he would likely not attend next January's State of the Union Address. At this year's edition of the venerable speech, you may remember, Justice Alito appeared visibly perturbed when President Barack Obama, standing just a few feet away on Capitol Hill, sharply criticized the Court's 5-4 newly minted ruling in the Citizens United case. That ruling, you also may remember, upset decades of legal precedent limiting the breadth of corporate speech rights under the First Amendment.

In Citizens United, Justice Alito didn't just vote with his conservative colleagues against the McCain-Feingold campaign finance law and in favor of sweeping constitutional rights for politically minded corporations. He also voted, earlier, for a proactive expansion of the scope of the case itself -- to go beyond the statutory dispute the parties initially had brought before the Court in order to turn the case into one of constitutional dimensions. Indeed, one of the most pervasive criticisms of the Court's majority in Citizens United is the perception that the Roberts Court unilaterally reached out of its way to impose a new constitutional rule that didn't need to be imposed to resolve the case.

After watching Justice Alito's speech to the ideological faithful -- the host introduced the George W. Bush appointee as one of a "small band of like-minded justices" who "are a critical and much-appreciated bulwark of our freedom" -- it seems to me the big story from the event isn't his social plan for January but rather his comments on the art and practice of judging. The justice who's been sharply criticized lately by liberals and progressives for improper "judicial activism" in Citizens United (and other cases) tried but failed to explain the concept of such "activism" in a coherent way. In retrospect, perhaps he would have been better off candidly paraphrasing Justice Potter Stewart's great line on pornography: "I can't define judicial activism but I know it when I see it."

Like the late Chief Justice William Rehnquist half a decade ago, Justice Alito is dissatisfied with the language employed by warriors in the polemic battle over the phrase "activist judge." "We have a heated debate about the role of judges," Alito told guests, "but no accepted vocabulary that defines exactly what the fighting is about. This terminological confusion, I submit to you, is not a superficial phenomenon." Indeed it must not be. Because over the course of the next 45 minutes or so, Justice Alito failed to lay out his own workable definition of the phrase "judicial activism." The best he could do was to define the concept in the negative: "Judges are not scientists," he said, "and they should not be constitutional rubber-stamps. They have no warrant to pursue a reform agenda that is not grounded in the Constitution and they should not aim to be theorists or crowd pleasers."

Does that help us define the contours of judicial activism? Not so much. It's a good sound bite -- some media types used the "crowd pleasers" line -- but it begs the question Justice Alito asked. As we saw in Citizens United, what is "grounded in the Constitution" depends in many close cases upon the eye of the beholder. Four justices in that case ruled that the corporate speech doctrine embraced by the Court's majority was not "grounded in the Constitution." Here you could make the argument, as so many do who lose before the Supreme Court, that might makes right; that if you have five votes on the Court you get to decide what is "grounded in the Constitution" or not. In any event, whether or that cynical view is legitimate, it still doesn't help us get closer to easing Justice Alito's "terminological" concerns about the battle over judicial activism.

Justice Alito tried a populist approach, too. "The Constitution doesn't always mean what we would like it to mean. The statutes that Congress enacts do not always mean what we would like them to mean. That is exactly what we mean by the rule of law," Justice Alito said. Editorial writers "may not appreciate the difference between what the Constitution means, and what one might like it to mean," he said, "[but] ordinary people still do get this critical distinction. The assault on the traditional idea of the role of judges began more than 100 years ago but ordinary people stubbornly hold on to some old-fashioned beliefs and one of these is the idea that the Constitution means something, statutes mean something, and the role of the judge is to interpret and apply the law as written."

The thought of "ordinary people" with "old-fashioned beliefs" understanding "that the Constitution means something"-- while reporters and the rest of America presumably don't -- sounds less like a reasonable description of the rule of law and more like dicta from a Glenn Beck monologue. Everyone agrees that "the Constitution means something," that statutes mean something, and the role of the judge is to interpret and apply the law." Where people reasonably disagree is over what our ambiguously worded legal cornerstones mean and how the many and memorable ambiguities and conflicts within them ought best be resolved. Besides, in the Citizens United case, contemporary polls suggested that 80 percent of Justice Alito's "ordinary people" believed the Court's decision to be wrong or, as he might put it, "not grounded in the Constitution."

If Justice Alito wants to make a meaningful contribution to the debate over the meaning and role of judicial activism in contemporary American law, I challenge him to explain in detail the reasons why he believes the Court's Citizens United ruling this past January was not the most obvious example of such "activism" since he came to the high court in early 2006. Such an explanation would help advance the modern debate over the phrase. And "ordinary people" everywhere might appreciate it, too.

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I believe the good Justice has displayed a staggering lack of grace and class. I want my Supremes to be above the day-to-day fray. I do not think it is appropriate for any of them to be giving speeches (except perhaps the occasional law school graduation address) to partisan groups. And, yes Justice Alito, you must attend the State of the Union address and show the President of the United States due respect.

October 19 2010 at 5:55 PM Report abuse -3 rate up rate down Reply
1 reply to pgbrooke's comment

No one is required to attend any such thing and the Justices do not answer to Obama. Respect is earned not demanded. If they want to show total impartiality they should stay away from all these ridiculous hyperpartisan State of the Union campaign speeches with the Speaker embarrasingly bobbing up down like a Jack in a box.

October 19 2010 at 7:17 PM Report abuse +2 rate up rate down Reply

Justice Alito should have the good grace not to hide from the American people. He should attend the state of the union which is a showcase for our entire government. Hopefully his future decisions will be thought through more carefully than this one which allows corporations to buy elections.

October 19 2010 at 3:45 PM Report abuse rate up rate down Reply
1 reply to andrc657's comment

Agreed. Allowing Obama to buy the most expensive presidency in American history padded with lots of corporate donations has proven one of the biggest mistakes in presidential history.

October 19 2010 at 4:03 PM Report abuse +2 rate up rate down Reply

Alito was not being activist because his decision in Citizens United was not in disagreement with the constitution but rather with McCain Feingold which itself was believed to be unconstitutional.

October 19 2010 at 12:14 AM Report abuse -2 rate up rate down Reply
The Real Howard S

Alito should have no trouble explaining why "Citizens United" is not the most obvious example of judicial activism since he came to the high court in early 2006. All he has to do is cite his own opinion in "Ledbetter v. Goodyear." That one was such a blatant misinterpretation of legislative intent that there was no outcry, even from conservative Republicans, when Congress clarified the law to preclude future off-the-wall Court rulings in 2009.

October 18 2010 at 11:09 PM Report abuse +3 rate up rate down Reply

I like Alito personally because of his comments on Free Speech recently, and it will be interesting what the ruling will be on protestors at the house of the dead soldier which was unforgivable.

October 18 2010 at 10:25 PM Report abuse +2 rate up rate down Reply

I challenge him to explain in detail the reasons why he believes the Court's Citizens United ruling this past January was not the most obvious example of such "activism" since he came to the high court in early 2006. because he was alive about a month ago when your boy Breyer launched an assualt on free speech then had to do a Michael Jackson moonwalk so fast he got whip lash

October 18 2010 at 8:12 PM Report abuse -2 rate up rate down Reply

If justice Alito wants to see the definition of what an activist judge his he only has to look in the mirror

October 18 2010 at 7:48 PM Report abuse -1 rate up rate down Reply

People should recognize that just about anyone, short of Solomon himself, will make decisions based upon thier life exeperience (what Sotomayor was alluding to in her "wise Latina" remarks during her conformation) and beliefs formed over a lifetime. The fact that Alito does either not understand this or refuses to acknowledege this fact is of concern. That he cannot articulate such a concept is something else entirely more worrisome.

October 18 2010 at 7:43 PM Report abuse +1 rate up rate down Reply

I think Alito defined Judicial Activism right on point. I happen to believe that it was judicial activism in the ruling for Austin v. Michigan. The Supreme Court overturned its prior decision in Austin v. Michigan Chamber of Commerce and only part of McConnell v. FEC. It rejected the very idea that government can decide who gets to speak and that the government can actually ban individuals, speaking through their corporate boards,or, those speaking through associations of members who share their beliefs. If upholding the rule of law and upholding the first amendment is activism, then why have any rulings, why not just let Congress abridge that right at whim? Speech is vital to the mechanism of democracy.

October 18 2010 at 7:21 PM Report abuse +3 rate up rate down Reply
2 replies to truthforfreedom's comment

Corporations rarely go in the direction that most of their employees would, so doesn't the corporations right then get put above the rights of actual citizens to the point of making them work to pay for the opinion they would never agree with?

October 18 2010 at 11:31 PM Report abuse +3 rate up rate down Reply

tausands Corporations speak through their boards not of the employees. If employees do not stand in agreement, they can leave that place of employ. If an employee wants to speak to the board, they may if they wish. Your assertion that employees work to pay for the opinion they would never agree with is without merit. An employee, if they want to keep their job and their salary, either stays and allows the corporate board to do what they deem correct or they leave. Who says that in the United States if you go to work for a corporation that the board of directors must make sure all employees agree with their decisions or opinions? That is absurd. You would be better off going to work for a non profit or charity organization, however, these associations may or may not make a decision you agree with either so your stuck in a world that your opinion may not be listened to. Poor you.

October 19 2010 at 10:29 AM Report abuse -3 rate up rate down Reply

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