Is there a glimpse of daylight beyond the "Let Them Eat Guns" Roberts Court?

Solicitor General Elena Kagan listens to Senate Judiciary Committee members' opening statements as her Supreme Court confirmation hearings began today.

"Corporations hate juries. It's the one part of government you can't buy."

-- Sen. Sheldon Whitehouse (D-RI), quoted by E. J. Dionne Jr. in his Washington Post column today, "Whose Supreme Court is it?"

by Ken

It was Justice Steven's last day on the Court, and the day after Justice Ginsburg's husband died, but they were both on hand to watch their colleagues, the beasts-of-the-fields who now constitute its working majority pursue their brutish assault on the Constitution.

You figured the chief justice and his five-man Constitutional Rewrite Committee ("We make it up as we go") had some jolly mischief sitting on something big for the final day of this session, with four noteworthy cases still to be resolved. In fact, for a band of hooligans like these, it was kind of pathetic stuff. Apparently the "Let them eat guns" majority isn't secure enough to just say, "Anybody can buy a gun anytime he wants." Presumably to hold onto "Slow Anthony" Kennedy's vote, they left open the possibility that jurisdictions actually can set limits on gun ownership.

You can see the thinking, though. "We are by God the Supreme Court, and what was the point of our rewriting the Second Amendment if we can't damn well make sure every goddamn court in the land enforces out new version making gun ownership a 'feel good' unrelated to any of language of the pedantic old version [i.e., "the written text"] of the amendment?" No doubt the dears are trying to pour some concrete around their flimsy Second Amendment rewrite to protect it from being treated as cavalierly as they themselves have been treating judicial precedent the next time the Court has a sane and legally responsible majority. I like to think, though, that the rulings of the Roberts goons are being preserved on toilet paper, so they can all be quickly and unceremoniously flushed down the crapper when the time comes.

Worse still, Slow Anthony went off the reservation altogether, joining the Court's four Communists, refusing relief to the Christian bigots who think they're entitled to university funds to pursue their bigotry. And nobody can really figure out what the Supreme goon squad said about patent limits.

Meanwhile, the confirmation hearings for Elena Kagan's nomination to replace Justice Stevens got off to a predictable start.

Republican senators questioned Monday whether Elena Kagan can be an impartial Supreme Court justice, displaying the partisan divide of the Senate Judiciary Committee as it began its confirmation hearing on Kagan's nomination to the nation's highest court.

While the panel's seven Republicans used their opening statements to challenge Kagan's judicial experience and ability to put aside personal politics, the 12 Democratic members praised Kagan's qualifications and welcomed her possible presence on a court they criticized for what they called conservative activism.

But if you're in the market for some political good news, E. J. Dionner Jr. says we should keep an eye on Senators Sheldon Whitehouse (D-R) and Al Franken (D-MN). He says they intend to have these hearings "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 should affect Kagan's confirmation, Dionne argues, except perhaps in a positive way. "Unless we live in an age of partisan double standards, she can't be asked to be any more forthcoming about her views than were Chief Justice John Roberts or Justice Samuel Alito." Oh, nothing apparently can stop Little Jeffy Sessions from making his squeaky little jerk noises (if he were your pet cocker spaniel and you took him to a vet, the vet would tell you it's time to let the poor creature go to peace), surrounded by fellow Republican members of the Judiciary Committee who are apparently themselves too far gone to be properly mortified that they even know, let alone are known associates of, the little cartoon character. Nevertheless, says Dionne, Kagan "will be approved easily, and should be." (See Charlie Savage's NYT report, "Kagan Promises Impartiality as Hearings Open.")

But E.J. says the good guys are going to set about changing the confirmation agenda.

[I]f 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.

If Whitehouse and Franken have their way, upcoming rounds of judicial confirmation hearings may follow a markedly different script, even if it means Little Jeffy will throw the tantrum to end all tantrums. (Is that different from what he's doing now?)

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 plaintiffs' rights 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 approach in a powerful speech to the American Constitution Society this month that has 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 to tell Republican senators what they claim to want to hear: that she is resolutely opposed to "legislating from the bench."

At this moment, 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.

For once, that sounds like a plan to me.

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