Legal Commentary

Justice Sotomayor, Judicial Minimalism And Citizens United

By Big Tent Democrat

Associate Justice Sonia Sotomayor cleverly asks whether conservatives really are judicial minimalists (recording of the argument in Citizens United here, transcript here (pdf):

Theodore B. Olson, a lawyer for Citizens United, argued for a broad ruling that would reverse two precedents allowing the government to restrict the campaign speech of all sorts of corporations notwithstanding the First Amendment. That prompted a question from Justice Sonia Sotomayor, her first as a Supreme Court justice. “Are you giving up on your earlier arguments that there are statutory interpretations that would avoid the constitutional question?” she asked Mr. Olson.

(Emphasis supplied.) A basic tenet of Supreme Court jurisprudence is constitutional avoidance (link to Conservapedia.) Do not decide the constitutional question unless you have to. Those opposed to "judicial activism," as conservatives purport to be, would want Citizens United decided on narrow statutory grounds, rather than on sweeping constitutional grounds. But the extreme right wing Roberts Gang of 5 plow forth with their judicially activist right wing agenda. And so would extreme Republicans like Mitch McConnell, who hired Floyd Abrams to argue for judicial activism on his behalf:

Arguing on behalf of Senator Mitch McConnell of Kentucky, the Republican leader, Floyd Abrams reminded the court that it could have decided New York Times v. Sullivan, the 1964 decision that revolutionized the law of libel, on quite narrow grounds. When First Amendment rights are in danger, Mr. Abrams said, bold action is sometimes required.

(Emphasis supplied.) Bold action by the courts in support of corporations is something McConnell has always favored. After all, Republicans, despite their pronouncements of fealty to "judicial restraint," have forwarded an activist court for decades now.

Good on Justice Sotomayor for calling them out with her very first question.

Speaking for me only

Full post as published by TalkLeft on September 09, 2009 (boomark / email).