First Day On The Shiny New Job

Justice Sotomayor wasted no time in going after Ted Olson's argument today on campaign finance reform.

By all accounts, she jumped right into questioning. She appeared skeptical of arguments by Citizens United that the conservative group's 90-minute campaign-era movie about Clinton ("Not a musical comedy," observed Justice Stephen Breyer) was protected speech. And she questioned Olson about why he had abandoned a former argument -- that Citizens United was not really a corporation -- for a more sweeping one, that campaign funding restrictions discriminate against corporations.

Upbraided by several Republican senators during her confirmation hearings about the importance of respecting court precedents, she asked Olson why he seemed so intent on toppling it in this case. Her first words:

Mr. Olson, are you giving up on your earlier arguments that there are ways to avoid the constitutional question to resolve this case? I know that we asked for further briefing on this
particular issue of overturning two of our Court's precedents. But are you giving up on your earlier arguments that there are statutory interpretations that would avoid the constitutional question?

His answer: no.

The case itself will still be decided by John Roberts, I think. It really could go either way, but the point is for all the bitching about activist judges that conservatives rail about, I haven't seen one single conservative commentator say word one about how the Supreme Court possibly upending 100 years of legal precedent doesn't qualify as "legislating broadly and from the bench."

Mysteriously, they are all silent.

Meanwhile, SCOTUSBlog's Lyle Denniston remarks that based on today's hearing, both precedents are in serious trouble.

If supporters of federal curbs on political campaign spending by corporations were counting on Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., to hesitate to strike down such restrictions, they could take no comfort from the Supreme Court’s 93-minute hearing Wednesday on that historic question. Despite the best efforts of four other Justices to argue for ruling only very narrowly, the strongest impression was that they had not convinced the two members of the Court thought to be still open to that approach. At least the immediate prospect was for a sweeping declaration of independence in politics for companies and advocacy groups formed as corporations.

The Court probed deeply into Congress’ reasoning in its decades-long attempt to restrict corporate influence in campaigns for the Presidency and Congress, in a special sitting to hear a second time the case of Citizens United v. Federal Election Commission (08-205). At issue was whether the Court was ready to overturn two of its precedents — one from 1990, the other from 2003 — upholding such limitations.

From all appearances, not one of the nine Justices — including the newest Justice, Sonia Sotomayor — appeared to move away from what their positions had been expected in advance to be. In her first argument, Sotomayor fervently joined in the effort to keep any resulting decision narrow — seemingly, the minority position but one she had been assumed to hold.

I wonder, when the Supremes throw out every campaign finance law over the last 100 years and declare that the free speech value of corporate cash trumps all in our political discourse, will any conservatives cry foul and say that these are activist judges?

And if this isn't judicial activism, for the love of God what is?