By now, you’ve heard about the Supreme Court’s totally ballsy ruling last week in Citizens United v. FEC, in which the Court held that corporations are people, money is speech, and therefore limiting corporate contributions to political groups violates First Amendment protections of Free Speech.  Some of these principles had been established before Citizens United, but their application here pretty much abolished campaign finance reform.  And, really, as much of a stretch as I think this is (especially for a Court that so literally and narrowly reads defendants’ rights in the Fourth, Fifth, and Sixth Amendment), well, I can’t get too mad about the substance of the decision.  Look, if liberals want to the Courts to interpret the Constitution in their favor, then win some presidencies and appoint more liberal judges—and quit being such wussies when it comes confirmation time.

The thing that makes me really steam-out-the-ears mad about this decision is the sheer hypocrisy of the Roberts Court’s procedural principals.  And make no mistake, one of the first things we learn in law school is that the side that controls procedure wins the substance.  Let’s review how Citizens United got to the Court, shall we? 

The political activist group Citizens United sought to air Hillary: The Movie, an anti-Clinton “documentary” on video-on-demand cable services.  The McCain-Feingold Act bans certain corporate-funded paid television time immediately before elections, and it also requires disclosure of corporate sponsors of election advertizing.  Sure enough, Citizens United took a ton of corporate money, meaning that Hillary was banned from cable on-demand.  During oral argument for this case last term, Citizens United argued for a narrow interpretation of the law to overturn the ban on Hillary, either by reading the statute not to mean “video on demand” or something along those lines.

During oral argument, the government’s lawyer defending the law, Deputy Solicitor General Malcolm Stewart, royally screwed up by suggesting that the government could regulate the publication of books prior to an election.  (For the record, Alito nailed him with this hypothetical, but Stewart could have easily deflected the question by using the Court’s distinction between political speech and commercial speech.)  This led the Court to postpone ruling on Citizens United to hear briefs on a question not even raised by the lawyers—whether to declare corporate funding of political advocacy groups who advocate for candidates as protected speech under the First Amendment, and thus could not be banned or even limited.  These questions had already been decided—even as recently as 2003.   

So, to sum up, here’s what the Court did:  Overturned a century’s worth of legal precedents on free speech, declared unconstitutional a bipartisan congressionally-passed law, stretched the text of the Constitution to declare money to equal “speech” and corporations to equal “we the people”—and in getting to the that ruling, answered Constitutional questions it didn’t need to answer, answered far more broadly than it needed to decide the case, and had the case re-heard because even the lawyers themselves didn’t think the Court would consider doing what it did.

In other words, you want ACTIVIST JUDGING?  That’s activist judging if ever an activist judge judged.  So, for all you I HATE ACTIVIST JUDGES haters in the house, you have to ask yourself:  Do you really hate “activist judges,” or do you just hate judges that rule in ways that don’t comport with your political views?  And if you still say you hate activist judges, then I patiently await your condemnation of the wholly radicalized Roberts Court.  It’s that, or you’re a raging hypocrite and all the talk about “Judicial Restraint” and “Judicial Deference” and “Constitutional Avoidance” was just a bunch of hot air and your jurisprudential theories are just as compromised by politics as those you criticize.

The Federalist Society types will no doubt argue that this judgment was necessary to expand Free Speech, and we can deal with the odd fact that conservative justices have worked to limit the freedom of speech for living, breathing human beings while expanding it for legal fictions.  That’s fine—there’s contradictions in every ideology, and sometimes you have to reconcile them after-the-fact.  But what gets me is that this is the same kind of Warren Court-ish behavior that conservatives have rightly decried as intellectually dishonest, thus completely undermining their whole rationale for, you know, hating on Sonia Sotomayor.