Private: Citizens United: What is a 'Conservative' Justice?

By Geoffrey R. Stone, the Edward H. Levi Distinguished Service Professor, The University of Chicago Law School. Professor Stone is also Chair of the ACS Board of Directors. This post is part of an ACSblog symposium marking the one-year anniversary of the landmark decision in Citizens United v. FEC.

The decision in Citizens United v. FEC poses an interesting puzzle about judicial consistency. The general assumption is that "conservative" justices are deferential and restrained in their interpretation of the Constitution. Citizens United stands this assumption on its head.

After the era of the Warren Court, political conservatives like Richard Nixon attacked the Court as activist. The proper stance of a judge should be more passive. A judge should not second-guess the reasonable judgments of legislatures. Nixon therefore appointed justices - Burger, Blackmun, Powell and Rehnquist - who would be appropriately conservative - that is, restrained - in their exercise of the power of judicial review. They would not make the same "mistake" as the liberal justices of the Warren Court by too readily substituting their own judgments about the nature of a good society for those of elected officials. Justices respecting this approach certainly would not have voted to invalidate the McCain-Feingold Bipartisan Campaign Act.

In the 1980s, political conservatives came up with a new theory of constitutional interpretation - originalism. The core idea of originalism was that, although the baseline for judicial interpretation should be restraint, justices were justified in being more muscular in their application of the Constitution when they were carrying out the original understanding of those who enacted the particular provision at issue in any given case. By so doing, originalist justices would avoid the activism of the Warren era, but avoid the abdication of judicial responsibility that is inherent in across-the-board judicial restraint. Whatever one thinks of originalism as an interpretative approach (I don't think much of it), it certainly leads to the opposite result in Citizens United. No one could argue with a straight-face that the original understanding of the First Amendment was to invalidate laws limiting the amount of money corporations could spend to elect their favored candidates.

One has to wonder, then, what possessed the five conservative justices - Roberts, Kennedy, Scalia, Thomas, and Alito - to reach the result they did. Of course, this is hardly the only anomaly in the performance of these justices. There activist votes to invalidate laws in other areas, like affirmative action, gun regulation and commercial advertising, pose the same puzzle. If their votes are not shaped by the values of restraint or originalism, what is the underlying theory of their jurisprudence? Are they just calling balls and strikes?

Campaign Finance, Constitutional Interpretation, Democracy and Elections, Supreme Court