Whose Supreme Court Is It?

This week's hearings over Elena Kagan's nomination to the Supreme Court will mark a sea change in the way liberals argue about the judiciary. Democratic senators are planning to put the right of citizens to challenge corporate power at the center of their critique of activist conservative judging, offering a case that has not been fully aired since the days of the great Progressive Era Justice Louis Brandeis. It was Brandeis who warned against the "concentration of economic power" and observed that "so-called private corporations are sometimes able to dominate the state."

None of this means that Kagan's nomination is in jeopardy. On the contrary, she'll be approved easily, and should be. She will be calm and reassuring during her hearings that start Monday. And unless we live in an age of partisan double standards, she can't be asked to be anymore forthcoming about her views than were Chief Justice John Roberts or Justice Samuel Alito. But if Kagan's job is to get confirmed, the task of progressive members of the Senate Judiciary Committee is to reverse the effects of years of conservative propagandizing over the stakes in our debates about the nation's highest court.

They will be pushing the narrative away from the hot-button social issues that have been a distraction from the main game: the use of the Supreme Court as a redoubt against progressive legislation, the right of plaintiffs to call corporations to account before juries, and the ability of the political system to protect itself against corruption.

Leading this charge will be two recently elected Democratic senators who are free of the constraints imposed by the controversies of the past, Sheldon Whitehouse of Rhode Island and Al Franken of Minnesota.

Whitehouse, formerly his state's attorney general, was one of the most outspoken voices during Justice Sonia Sotomayor's hearings last year. He battled—largely in vain—against Republican efforts to turn the hearings into a rally on behalf of a definition of "judicial restraint" that would have judges approve whatever items happen to be on the conservative agenda. It's amazing how often conservative judges use the "original intention" of our Founders to conclude that Jefferson, Hamilton and Madison were simply card-carrying members of the American Conservative Union.

This time, Whitehouse told me he plans to focus on how conservative courts have limited the rights of plaintiffs to challenge corporations before juries by restricting the right to sue and on the evidence that can be brought into play. "Corporations hate juries," Whitehouse said. "It's the one part of government you can't buy." He will link this argument with a challenge to the Supreme Court's appalling Citizens United decision, which gives corporations virtually unlimited rights to spend money to influence elections. Invoking the baseball umpire metaphor made popular by Roberts, Whitehouse observed that "corporations have a different strike zone in the Supreme Court than regular people."

Franken previewed his own approach earlier this month in a powerful speech to the American Constitution Society that has already made conservatives unhappy. Franken argued that the right has dominated the judicial debate by suggesting that "the Court's rulings don't matter to ordinary people" through a focus on cases involving late-term abortion, flag-burning, and pornography. The time has come, Franken said in an interview, for progressives to recognize that Roe v. Wade has distracted attention from what is now at the heart of the judicial controversy: the ability of individuals to assert their rights against corporations. "If you use a credit card, if you work, if you drink water, you're affected by the court," he said. "Roe is important, but there's this whole other area we weren't talking about."

In his speech, Franken cited a long list of conservative rulings that powerfully affected average citizens: decisions against shareholders' rights, against workers fighting for their pensions, against small-business owners battling price-fixing, against environmentalists trying to protect wetlands—and, note well, in favor of Exxon when it capped punitive damages for the Valdez oil spill.

How will this argument affect Kagan? It puts her in a perfect position of being able to tell Republican senators what they claim to want to hear: that she is resolutely opposed to "legislating from the bench."

At this moment in history, those words would signal her refusal to join a conservative majority on the court determined to enhance the power of private corporations and to undermine the right of our government's elected branches to legislate and regulate in the public interest.

Related: The Elena Kagan You Won't See and The Right Court Fight, by E. J. Dionne Jr.

Who Approves This Message?, by Steven H. Shiffrin; Corporate Mischief, by Joseph D. Becker;
Judicial Modesty, by Richard W. Garnett