There’s No More Activist Court Than the US Supreme Court

In legal briefing and in public statements, involving litigation surrounding Armstrong v. State [1]–holding that women have an individual privacy right to obtain a pre-viability abortion free from government interference under Montana’s Constitution–Montana’s Attorney General, Austin Knudsen, has accused the Montana Supreme Court of judicial activism and legislating from the bench.

Ironically, General Knudsen levels his claims against the wrong Supreme Court.

When Ronald Reagan became president, he set out to change the nature of the Supreme Court, which, for years, had been committed to defending civil rights against state discrimination.  The Court relied upon the 14th Amendment, equal protection and due process clauses.

Those who resented this approach accused the Court of “legislating from the bench” and of “judicial activism.”  They insisted that the Court must simply enforce the letter of the law by interpreting the words of the Constitution’s framers as they had written them.  This judicial philosophy is called originalism or textualism. The standard bearer for this approach was Antonin Scalia, appointed by Reagan in 1986.[2] Other justices presently serving on the Court, claim to be originalists.

But originalists are hypocrites; theirs is a judicial philosophy without clothes.  Two examples make my point:

First, if you read the original federal Constitution and Bill of Rights, you will find there are no rights given to any non-human legal entity—corporations, associations, partnerships, for example. Not a single, solitary right. Indeed, the Constitution and Bill of Rights do not even contain the word corporation.  And with good reason.  The Framers did not trust big business; many had been burned in the corporate failures and scandals of the time.

Yet over a period of some 200-plus years since the Constitution was written, corporations have come to enjoy nearly all the same rights as human beings.  How? Because the US Supreme Court created those rights for non-human legal entities from whole cloth (General Knudsen’s phraseology). The Court simply grew the Constitution beyond the textual language and words used by the Framers.

Even the idea of corporate “personhood” is a fraud. The notion that a non-human legal entity is a “person” for purposes of the 14th Amendment, is thought to have arisen in an 1886 tax case, Santa Clara County v. Southern Pacific Railroad.[3] The decision in that case said nothing about corporate rights, but was decided in favor of the Railroad on narrow tax-based grounds.  In a companion case issued the same day, Justice Stephen Field, an advocate of corporate rights, filed a concurring opinion voicing his displeasure with the Court for avoiding the issue of corporate rights under the 14th Amendment in Santa Clara.

However—and here comes the fraud—the Supreme Court’s reporter of its decisions, J.C. Bancroft Davis, a man given to mistake, if not outright deception, stated in his syllabus of the Santa Clara decision that the Court held that “The defendant Corporations are persons within the intent clause in section 1 of the Fourteenth Amendment to the Constitution of the United States . . . .”  This was patently false; the Court neither stated nor held, any such thing.

And yet knowing this falsehood, Justice Field inserted in a subsequent majority opinion he authored in1888, the statement that corporations had 14th Amendment rights as persons—assertions jurisprudentially unsupported, and, not to mention, irrelevant to the issue actually before the Court (involving foreign corporation fees).[4]

That corporations are constitutional persons is the Supreme Court’s bastard child that can never prove its legitimacy despite relying on its false parentage.[5]

Second, there is the Court’s decision in Citizens United.[6]  The last thing that the Framers ever would have done would be to empower corporations with an unlimited right to free political speech based on the notion that money equals speech.

Accordingly, when it comes to legislating from the bench and judicial activism, the Supreme Court of the United States knows no parallel. .[7]

In his displeasure with the Armstrong decision, General Knudsen, refuses to acknowledge that women have greater privacy rights under Montana’s Constitution than they might be entitled to under its federal counterpart. That the Montana Supreme Court credited this principle of constitutional law is not judicial activism.  Rather the Court displayed intellectual honesty and interpreted not only the language of the constitution, but, as well, its history, spirit and intention.

Most importantly, though, Montana’s Constitution belongs not to partisan or sectarian ideologues, but to the people.  The Constitution must be interpreted to work for the people in principled, fair and consistent ways.

Armstrong does exactly that.


[1] Armstrong v. State of Montana, 1999 MT 261, 296 Mont. 361, 989 P.2d 364.

[2] See, Heather Cox Richardson from Letters from and American,, January 26, 2022.

[3] Santa Clara County v. Southern Pacific Railroad, 118 US 394 (1886).

[4] Pembina Consolidated Silver Mining v. Pennsylvania, 125 US 181 (1888).

[5] See We the Corporations, How American Businesses Won their Civil Rights, Adam Winkler, Liveright Publishing Corporation, New York, 2018, pp 146-157.

[6] Citizens United v. Federal Election Commission, 558 US 310 (2010).

[7]Also, excellent reads on these topics: Supreme Inequality, the Supreme Court’s Fifty-Year Battle for a More Unjust America,Adam Cohen, Penguin Press, New York, 2020; Injustices, The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, Ian Millhiser, Nation Books, New York, 2015; and Corporations are Not People, Jeffery D. Clements, Berrett-Koehler Publishers, Inc., San Francisco, 2014.

James C. Nelson a retired Montana Supreme Court justice. He lives in of Helena.