President Barack Obama has been in office for less than two years, and he has already been given the opportunity to fill two Supreme Court vacancies. As this issue of Commonweal goes to press, Solicitor General Elena Kagan, Obama’s current nominee to the high court, is finishing up her confirmation hearings before the Senate Judiciary Committee. Not surprisingly, there have been few surprises.
In a now-notorious book review written fifteen years ago, Kagan herself described recent Supreme Court confirmation hearings as “a vapid and hollow charade,” a statement she judiciously distanced herself from before the committee. Yet little in the predictable exchanges between the nominee and the senators of both parties would lead anyone to disagree with Kagan’s original harsh judgment about the deeply politicized and partisan nature of the confirmation process. Given the Democratic majority in the Senate, Kagan’s confirmation is all but assured. Yet her judicial “philosophy” remains at best opaque, much to the exasperation of her Republican interlocutors. Part of this, of course, is by design. Kagan, who has no experience on the bench, was chosen at least in part because she has no record of rulings that Republicans can search for ammunition to oppose the nomination. Yet many Democrats are frustrated as well. They have been looking for a forceful liberal voice to resist what many see as the current Court’s expansive accommodation of corporate and presidential power, as well as its willingness to overturn precedent and ignore the express will of Congress. Conservatives have long decried “activist” judges who supposedly “legislated from the bench,” but the Roberts Court is hardly shy about breaking new legal ground. Just in this term, it overturned a century’s worth of legislative and court efforts to regulate the influence of money in political campaigns, and rejected local gun-control laws in an expansive reading of the Second Amendment’s guarantee of a right to bear arms.
In his own confirmation hearings, Chief Justice John Roberts compared the task of a judge to that of an umpire calling balls and strikes. It was, at best, a strained analogy, for the strike zones of even the Court’s most reliably conservative justices can vary, even when they concur in a particular decision. Interpreting the text of the Constitution and the weight that should be given to legal precedent is a good deal more difficult, and much less definitive, than calling balls and strikes. In the end, judges really must exercise sound judgment and be able to make their reasoning intelligible to the public. In the American constitutional system of checks and balances and separation of powers, the independence of the judiciary is sacrosanct, yet the courts are also held accountable to the democratic process. That is why the Constitution stipulates that unelected judges be nominated and confirmed by officeholders who serve at the pleasure of the voters.
There is a good argument to be made that the current Court is in danger of losing touch with the legitimate concerns of most Americans, especially on economic questions. Kagan’s confirmation will not change the ideological balance on the Court, but should Obama have to replace another justice the stakes may be much higher. That is why some legal scholars, such as Harvard’s Noah Feldman, are urging liberals to more forcefully challenge the conservative jurisprudence of the Roberts Court. Feldman is worried that governmental efforts to address the nation’s most pressing problems, such as Obama’s health-care-reform law, the Dodd-Frank banking regulation bill, and the response to environmental catastrophes like the BP oil spill, may well be blunted by the Court. “Progressive constitutional thought must discover (or rediscover) a core set of beliefs about the right relationship between government, the individual, and the powerful corporate entities that operate under the umbrella of the market,” he writes in the New York Times Magazine. “A truly progressive constitutional project needs to go beyond simply upholding regulations challenged in court. It demands that the Supreme Court and other bodies acknowledge the government’s responsibility to protect our democracy from the harmful side effects of all-powerful markets.”
In today’s political climate, many seem to think it is government that is the foremost threat to our liberties and wellbeing. In fact, Republicans pursued that line of argument in Kagan’s hearings. But as the oil spill, the influence of money in politics, the financial meltdown, and the ongoing recession all remind us, enormous concentrations of economic power pose risks at least as great as overreaching government. To what extent the current Supreme Court will allow government to act in pursuit of the common good is now a pressing question. The Kagan hearings have done little to answer it, but an answer will be needed soon.
July 1, 2010