When deference is activism

Allison Hayward Contributor
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As the Senate Judiciary Committee continues hearings on Solicitor General Elena Kagan’s nomination to the Supreme Court, a number of the Court’s critics, most prominently Senator Arlen Specter (D-Pa.), are using the opportunity to castigate the “judicial activism” of Citizens United v. Federal Election Commission.

Ironically, their calls for deference to Congress, particularly in the campaign finance arena, would serve a result-oriented agenda more activist than anything thus far entertained by the Roberts Court. Kagan, who argued the government’s case in Citizens United, is a supremely ironic vehicle for this narrative ride through judicial philosophy.

Specter recently complained that the Supreme Court has disrespected the legislative branch by not deferring to its regulatory expertise. He contends that elected representatives should craft and debate laws regulating politics. He curtly criticized the stay issued by the Court in the case challenging Arizona’s taxpayer financing program for candidates (called McComish v. Bennett), and he’s irate about Citizens United allowing companies and grassroots groups to advocate for or against candidates.

Oddly, the legislative “fix” for Citizens United, the DISCLOSE Act that just passed the House of Representatives, contains no legislative findings at all (they were stripped out) and its present form was crafted largely in secret, without significant input from the minority party. Congress isn’t even trying to earn the respect Specter demands.

Moreover, the “activism” of the Roberts Court isn’t activism as most people understand it. To call the Warren Court of the 1960s activist was to state a fact: Under the supervision of Chief Justice Earl Warren, the Court constructed new constitutional standards for state redistricting and elections, discovered new constitutional rights to reproductive privacy and a right to travel— the list goes on.

To label the Roberts Court activist, especially in the context of Citizens United and McComish, is just to state a disagreement with the Court’s application of precedent. In Citizens United, the Court faced squarely the corporate expenditure ban— a statute it had been tap dancing around with one exception since it was enacted in 1947. The Court applied the proper standard of scrutiny—strict, meaning that it demanded a compelling governmental interest and not just the “rational” explanation of Congress—and couldn’t find a legitimate state interest to justify the law.

In McComish, the Court was asked to stay the hand of Arizona while the law was being reviewed. Given Supreme Court precedents, as well as the precedents in some appellate circuits, the challengers may win. Would Specter prefer that the Court allow the law to restart, unconstitutionally, only to pull the plug again?

The majority in the Senate Judiciary Committee are using the Kagan hearings to press their anti-Roberts argument. That this debate is occurring during Kagan’s consideration is simply because people are watching and cameras are rolling. Kagan as a constitutional scholar did not believe the Court should always defer to Congress in its legislative judgment. Her writings recognized that Congress has an evident conflict of interest when regulating politics and political speech. She agreed with constitutional precedents that have long held that such restrictions should not enjoy deference. Strict scrutiny is, after all, the antithesis of deference.

Moreover, according to documents released by the Clinton Library, Kagan seems to find constitutional infirmities in many of the suggested initiatives supported by the policy staff in the White House.  Partly this was her job, but her opinions about the unconstitutionality of many of the “reform” ideas is easy to square with her scholarship. Plus, her notes display genuine concern over the effects some suggested laws would have (even when she pointed out how laws would impact one political party over another).

Kagan, unfortunately, has dodged questions about her First Amendment jurisprudence, explaining that Citizens United is “settled law going forward,” but she couldn’t comment on her personal views because “it’s a little bit difficult to take off the advocate’s hat and put on the Justice’s hat.”

What isn’t easy to explain is how Kagan’s legal perspective evolved into the “deference” attitude that is presently being attributed to Kagan by the Obama Administration and friendly forces on the Hill. Kagan the scholar might disagree with the Court’s holding in Citizens United, or might have concurred with it. Kagan the scholar would not have told the Court simply to “defer” to Congress in the regulation of politics. If her change of heart is genuine, it would be helpful to know what precipitated that change. If opportunistic, that would say something about her independence and character, and would be very good to know in advance of a lifetime appointment to the highest court in the land.

This “deference” siren song is not about restricting the scope of Court review. It is a code word for a very aggressive agenda—one that seeks to empower congressional incumbents with unprecedented authority to select which interests in society get to speak out about campaign, politics and policy. Deference in this context departs from principle and is, truly, activist.

Hayward is the Vice President of Policy at the Center for Competitive Politics. She recently published “Kagan v. Kagan: Campaign Finance, Congress and the Courts,” a policy analysis of Kagan’s campaign finance background.