Will Sonia Sotomayor Surprise Everyone And Turn Out To Be The Best Justice Since William Douglas Or Felix Frankfurter?

Ken and I were both cheering for the confirmation of Obama's first Supreme Court nominee, Sonia Sotomayor, despite the fact that we both looked her over and saw a moderate rather than the liberal we wished we could fight for. But maybe this "moderate" is just what the court needs. I'm pointing that out today because the first thing she's brought up on the bench could be the most important thing anyone has said from that bench-- important in a good way-- in decades! As Jess Bravin at the Wall Street Journal reported Thursday, she "made a provocative comment that probed the foundations of corporate law."

In his film Capitalism: A Love Story, Michael Moore, correctly, and effectively, points out that the corporate managers are the new American aristocracy in what CitiBank calls our "plutonomy." He doesn't really go into the source of the power that corporations have over democracy: the corporate personhood that Thom Hatmann has been railing against on the radio and in his book, Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights

Sonia Sotomayor is smart enough to know that's pretty close to the root of all political evil and she's... on the case. When the 5 corporate shills who make up the Supreme Court majority started discussing overturning McCain-Feingold based on how "corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled," Sotomayor brought up the biggest fear the right has, bigger than race, bigger than choice, bigger than... anything.

Justice Sotomayor suggested the majority might have it all wrong-- and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have.

Judges "created corporations as persons, gave birth to corporations as persons," she said. "There could be an argument made that that was the court's error to start with...[imbuing] a creature of state law with human characteristics."

After a confirmation process that revealed little of her legal philosophy, the remark offered an early hint of the direction Justice Sotomayor might want to take the court.

"Progressives who think that corporations already have an unduly large influence on policy in the United States have to feel reassured that this was one of [her] first questions," said Douglas Kendall, president of the liberal Constitutional Accountability Center.

"I don't want to draw too much from one comment," says Todd Gaziano, director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation. But it "doesn't give me a lot of confidence that she respects the corporate form and the type of rights that it should be afforded."

For centuries, corporations have been considered beings apart from their human owners, yet sharing with them some attributes, such as the right to make contracts and own property. Originally, corporations were a relatively rare form of organization. The government granted charters to corporations, delineating their specific functions. Their powers were presumed limited to those their charter spelled out.

"A corporation is an artificial being, invisible, intangible," Chief Justice John Marshall wrote in an 1819 case. "It possesses only those properties which the charter of its creation confers upon it."
But as the Industrial Revolution took hold, corporations proliferated and views of their functions began to evolve.

In an 1886 tax dispute between the Southern Pacific Railroad and the state of California, the court reporter quoted Chief Justice Morrison Waite telling attorneys to skip arguments over whether the 14th Amendment's equal-protection clause applied to corporations, because "we are all of opinion that it does."

That seemingly off-hand comment reflected an "impulse to shield business activity from certain government regulation," says David Millon, a law professor at Washington and Lee University.

"A positive way to put it is that the economy is booming, American production is leading the world and the courts want to promote that," Mr. Millon says. Less charitably, "it's all about protecting corporate wealth" from taxes, regulations or other legislative initiatives.

Subsequent opinions expanded corporate rights. In 1928, the court struck down a Pennsylvania tax on transportation corporations because individual taxicab drivers were exempt. Corporations get "the same protection of equal laws that natural persons" have, Justice Pierce Butler wrote.

...Justice Sotomayor may have found a like mind in Justice Ruth Bader Ginsburg. "A corporation, after all, is not endowed by its creator with inalienable rights," Justice Ginsburg said, evoking the Declaration of Independence.

How far Justice Sotomayor pursues the theme could become clearer when the campaign-finance decision is delivered, probably by year's end.

It's going to take a lot more than Sotomayor and Ginsburg to turn that ship around and prospects, short of a real revolution, are dim. You think the forces of the status quo are oinking up a storm now-- over health care? The astroturfing operations on anything like this would make the Nuremberg rallies look like elementary school civics classes!