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2012 U. Ill. L. Rev. 485 (2012)
Citizens United and Conservative Judicial Activism

handle is hein.journals/unilllr2012 and id is 489 raw text is: CITIZENS UNITED AND CONSERVATIVE JUDICIAL ACTIVISMt Geoffrey R. Stone* This Article analyzes the recent trend of conservative judicial ac- tivism in the Supreme Court and searches for a principled reason to explain it. The conservative majority has struck down several laws in recent years, culminating in its invalidation of an important provision of the Bipartisan Campaign Reform Act of 2002 in Citizens United v. Federal Election Commission. While judicial restraint and originalism are currently seen as conservative principles, neither prin- ciple explains these decisions. The author argues that no principle can explain the results of these cases-rather, they can only be explained by the Justices' per- sonal views and policy preferences. The author compares the con- servative majority's pattern to that of the Warren Court, which largely invalidated laws only when footnote four in United States v. Carolene Products Co. would dictate that the Court should. Thus, neither unrestrained judicial activism nor total judicial restraint is ap- propriate. Instead, the author argues that a selective judicial activism guided by footnote four is the best approach. The author then con- cludes that the conservative majority is troubling because it is infusing its personal policy preferences into its opinions while at the same time convincing the public that it is acting in a principled manner. The Supreme Court's 2010 decision in Citizens United v. Federal Election Commission' provides an interesting entry point for a discussion of conservative theories of constitutional interpretation. In Citizens United, the Court, in a five-to-four decision, held unconstitutional a key provision of the Bipartisan Campaign Reform Act of 2002 (BCRA).2 The specific provision the Court invalidated limited the amount of mon- t This Article was originally presented on March 9, 2011, as the second 2010-2011 lecture of the David C. Baum Memorial Lectures on Civil Rights and Civil Liberties at the University of Illinois College of Law. * Edward H. Levi Distinguished Service Professor of Law, The University of Chicago. 1. 130 S. Ct. 876 (2010). 2. Pub. L. No. 107-155,116 Stat. 81 (2002) (containing the entirety of BCRA).

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