Why Americans May Be Losing Confidence In The Supreme Court

Chief Justice Robers spoke very eloquently during his confirmation hearings of judicial modesty. He likened his role to that of an umpire calling balls and strikes. Judge Roberts also expressed his belief that judges should decide cases as narrowly as possible, addressing only the question before them and not using a case as a forum to advance personal agendas by issuing broader decisions. As Jeffrey Toobin reported in the New Yorker recently, the Citizens United case stands this argument for judicial modesty on its head. The plaintiff’s lawyer, former Solicitor General Ted Olson, asked the court simply to rule that a provision of the McCain-Feingold campaign finance law did not apply to his client’s 90-minute infomercial attacking then Senator and presidential candidate Hillary Clinton. Judge Roberts and his conservative brethren could have followed their philosophy of judicial restraint by issuing the decision that Mr. Olson asked them to make. They chose, however, to expand the case into a broad and fundamental argument about the First Amendment and attempts to regulate the torrent of money flowing into campaigns. Small wonder, then, that there is growing skepticism and falling respect for the judiciary in general and the Supreme Court in particular.

See Toobin’s article (paywall here) http://www.newyorker.com/reporting/2012/05/21/120521fa_fact_toobin

For a rebuttal of the conservative argument about “judicial restraint” (the term everyone – liberal and conservative – uses to praise any decision they like) and “judicial activism” (code for any decision the speaker don’t like), see former Judge Souter’s 2010 Harvard commencement address:

http://news.harvard.edu/gazette/story/2010/05/text-of-justice-david-souters-speech/