June 30, 2006

If any person holds even the slightest doubt that the theory and practice of Liberal Judicial Activism doesn't lead to the Supreme Court's micromanaging every aspect of American life, that person has incredibly remained ignorant of fifty years of American judicial history. But to save such a person from a litany of instances in which Liberal activists have divined what the Constitution permits and proscribes by carefully examining the "penumbras" of "emanations" that they claim radiate from the Constitution's words, we'll simply take a look at RANDALL v. SORRELL, a recently decided case which ought to convince the most fervent doubting Thomas or Theresa among us of exactly where Liberal judges are taking American democracy.  

Briefly, RANDALL has to do with a Vermont law that places strict limits upon how much candidates for office can expend in their campaigns (for example, governor $300,000; state representative $2,000) and how much an individual, a political committee, or a political party can contribute to a campaign (for example, governor $400; state representative $200).  

In deciding the case, the justices had three options: (1) Accept the principle of stare decisis (the principle of adhering to previous decisions) as established by BUCKLEY v. VALEO and agree with the Second Circuit Court of Appeals that the entire law is constitutional (2) Overrule BUCKLEY and declare the entire law unconstitutional because it runs afoul of the First Amendment (3) Uphold BUCKLEY but through the occult practice of interpreting the penumbras of its emanations, find all or part of the Vermont law unconstitutional.  

As we have come to expect, the Court did not hesitate to leap at the job of playing the nation's dictator and chose the third option over the second, with only Justices Thomas and Scalia (though agreeing that Vermont's law is unconstitutional) arguing that BUCKLEY ought to be overruled because as Justice Thomas writes, it "provides insufficient protection to political speech, the core of the First Amendment [with an] illegitimacy [that is] further underscored by the continuing inability of the Court (and the plurality here) to apply Buckley in a coherent and principled fashion."  

So what happens when the Court, agreeing with BUCKLEY'S words that it has "no scalpel to probe, whether, say, a $2,000 ceiling might not serve as well as $1,000," decides to "operate" nevertheless, proclaiming that it can still discover just the right dollar amount that comports with the First Amendment's guarantee of free speech?   

The first thing that happens is that Thomas and Scalia are proven correct as once again the Court reveals its "continuing inability . . . to apply Buckley in a coherent and principled fashion." For proof, check out the following from the "Syllabus" of the case at hand:   

But that hodgepodge of opinions about whether an expenditure or contribution of $1.97 is constitutional while one of a penny more makes the Constitution blush bright red at too much green doesn't represent the whole mad story of RANDALL. For the rest of the twisted tale, we must look at some of Justice Breyer's stunning words.  

Having already sent us reeling by agreeing that the Supreme Court is capable of performing "surgery" on the Constitution even though the words of the Framers have rendered it scalpel-less, Breyer knocks us on the head again when he reveals what his magical surgery discovered:   "[Vermont's] limits are unconstitutional because in their specific details (involving low maximum levels and other restrictions) they fail to satisfy the First Amendment's requirement of careful tailoring."  

Our muddled minds challenged by a new and strange metaphor, we nevertheless gather out wits to shout at Justice Breyer that the First Amendment says nary a word about exempting political speech from its guarantee and therefore provides no guidelines that allow for "careful tailoring" of restrictions that "satisfy" that guarantee. Predictably, Breyer doesn't hear us but moves on with the following defense of BUCKLEY:  

"Stare decisis thereby avoids the instability and unfairness that accompany disruption of settled legal expectations. For this reason, the rule of law demands that adhering to our prior case law be the norm."  

This devious slap sends us reeling once again as we contemplate the odious hypocrisy of a Liberal judge whose whole notion of jurisprudence cares not a whit about the past, the present, or the meaning of words but proclaims that "activist" judges ought to substitute their own political and social beliefs for the words of the Constitution, alternately citing or ignoring (according to the demands of the Liberal agenda) not only prior decisions but also the nation's "evolving standards of decency."  

Barely having recovered from that stinking smack, we receive Breyer's final blow:  

"We cannot determine with any degree of exactitude the precise restriction necessary to carry out the statute's legitimate objectives. In practice, the legislature is better equipped to make such empirical judgments, as legislators have "particular expertise' in matters related to the costs and nature of running for office."  

Stunned as we are, we know that Breyer will follow that statement with a big, fat "but," which is exactly what he does as he reveals himself the perfectly dictatorial "activist" judge when, without a bit of shame for contradicting himself, he announces that determining whether or not Vermont's dollar limits meet the constitutional test with a "degree of exactitude" is exactly what the Court intends to do.  

(Those who doubt the infinite shamelessness of which Liberal activists are capable should know that to bolster the argument that the Court can fairly and effectively micromanage "constitutional" limits upon campaign monies, Breyer cites a Missouri case to show that Vermont's dollar limits fall below the lowest limits the Court has previously approved but immediately follows that statement with an admission that on a per capita basis the Vermont law allows for expenditures and contributions greater than Missouri's law does.)  

All this judicial mumbo-jumbo goes to show that the only person making sense here is Justice Thomas, who concludes that "Buckley, as the plurality has applied it, gives us license to simply strike down any limits that just seem to be too stringent, and to uphold the rest. The First Amendment does not grant us this authority. Buckley provides no consistent protection to the core of the First Amendment, and must be overruled."  

But don't bet that the thinking of Thomas and Scalia will prevail soon, for whatever case comes before the Court, its four hard line Liberal activists need only one other justice to side with them to keep alive the Liberal Judicial Activist dream of using the courts to micromanage every last aspect of American culture. With that thought in mind, we can acknowledge that while Ann Coulter exaggerated a bit when she suggested that the fight over the make-up of the Supreme Court is the only domestic issue that counts, she didn't exaggerate by much.  

Copyright by A.J. DiCintio

This article was first published by MichNews.com on June 30, 2006, and is reposted here with the kind permission of the author.