If there was any doubt whether Supreme Court Justice Kagan was going to be a judicial activist, that question was answered in her dissent in the taxpayer financing of campaigns/matching funds case, Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.
At the start of her dissent, she writes about two hypothetical states:
A person familiar with our country’s core values—our devotion to democratic self-governance, as well as to “uninhibited, robust, and wide-open” debate, New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964)—might expect this Court to celebrate, or at least not to interfere with, the second State’s success [because of the matching fund system]. But today, the majority holds that the second State’s system—the system that produces honest government, working on behalf of all the people—clashes with our Constitution. The First Amendment, the majority insists, requires us all to rely on the measures employed in the first State [which does not have matching funds], even when they have failed to break the stranglehold of special interests on elected officials.
Ignoring whether she is right about her unsubstantiated conclusions about the success of matching funds (she’s not), the issue that should jump out is she is starting her dissent by criticizing the majority for reaching a decision that doesn’t yield a desirable result (in her eyes). The majority should have “celebrated” the success of the second State or at least not interfered with their actions. Forget whether the Constitution and past cases allow such a holding, the ends justify the means. This by any definition is a judicial activist.
