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“We don’t want no activist justices.”

While the language may not be quite accurate, that is certainly the sentiment that has been expressed so often over the past decades, especially by conservatives and especially when a Democrat has held the office of president.

Now we see that activist justices can be either conservative or liberal with the recent Supreme Court decision that overturned a century of precedent and that will permit corporations to spend as much money as they choose to influence elections.

Of course, it’s not just corporations that will be able to exert this unbalanced influence, it will also apply to unions and (some speculate) under the proper circumstances, foreign interests and/or corporations.

Just think of it, the concept of free speech has now been expanded from the individual — which, many scholars will attest, it was originally intended to protect only individuals — to nearly anonymous corporate entities whose funds come from disparate sources that are not easily tracked and which are frequently from those who do not wish their funds to be dispensed without their specific approval.

And when we consider the constitutional protection of free speech, it should be remembered that when the Bill of Rights was drafted, there were no corporations in America, so it is unlikely that the framers of those rights had corporations in mind.

As examples, those who invest in the stocks of corporations are placing their money at the disposal of the corporate officers and boards who then decide how that money shall be used. While each stockholder expects that their money will earn him or her dividends or a rise in the value of their stock, that money can now be channeled into political ads to influence elections.

In the past, these corporations have been free to spend those funds through PACs or directly to candidates (in limited amounts), but now the door has been thrown open and the limits removed.

Even John McCain, a conservative and co-sponsor of the McCain-Feingold Amendment, seems to think this unfettered spending is not a good thing.

And unions will be permitted the same blessing.

So, while stockholders and investors must be making decisions about whether they choose to continue pouring their money into corporations that may spend it on unlimited campaign financing, so too must union members begin to consider how they will be able to control the manner in which their union dues are expended without their direct input.

This Supreme Court decision, which has eviscerated the McCain-Feingold amendment, was delivered by the thinnest margin possible on the court, 5 to 4, and the split on the court reflects the current split in the U.S. Congress, conservative vs. liberal.

It would seem that the court is afflicted with the same malady as exists in Congress except that, in Congress, the split keeps things from getting done, while in the court the split results in bad law which affects everyone.

“Activism” in the judiciary has always existed and, most likely, always will. The history of the Supreme Court is rife with examples of activism that seemed to exhibit itself at the time, most of which has come into general acceptance as the decades passed.

But the definition of activism lies outside the realm of strict interpretation because it depends almost exclusively on the viewpoint of the person who is claiming that the decision is an example of activism.

The Supreme Court pendulum swings inexorably between conservative and liberal interpretations.

Perhaps some future court will see the wisdom of changing this decision. Let us hope this happens before too much damage is done.

Contact Chuck Witt at chuck740@bellsouth.net

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