MAY 20, 2010
Soon after this magazine was founded, the editors joined with relish a fight over President Woodrow Wilson’s nomination of Louis Brandeis to the Supreme Court. Defending Brandeis against his Boston enemies—the financial oligarchs whom he had attacked in his book Other People’s Money—we championed his vision of liberal judicial restraint: namely, the view that courts should defer to progressive laws and regulations enacted by the states, Congress, and federal agencies. And The New Republic has continued to champion Brandeis’s vision for nearly a century, insisting that economic and social progress should come primarily from political actors rather than the courts.
In light of this history, President Obama’s nomination of Elena Kagan to occupy the Brandeis seat—which passed from Brandeis to William O. Douglas to John Paul Stevens—is cause for celebration. Before nominating Kagan, Obama made clear he embraced Brandeis’s preference that judges show restraint in cases involving contested visions of economic and social progress. At the end of April, Obama upset Warren Court nostalgists by pointing out astutely that liberal activist judges in the 1960s and ’70s had overreached with an approach that “ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically.” Obama accurately noted that, today, it’s conservatives who are making the same error: running to court to reverse their political defeats in areas ranging from campaign finance to health care to economic reform.
Kagan almost certainly shares the president’s vision of liberal judicial restraint. Based on our close reading of her career and writings, it seems that she believes the president and Congress should have broad power in areas from health care and economic regulation to terrorism and national security policy, without being second-guessed by the courts. And Kagan recognizes that it’s the Democrats who now believe in judicial restraint, or the view that courts should be hesitant to strike down laws and regulations endorsed by the president and Congress. As she wrote in her now-famous 1995 article on the confirmation process: “[G]iven that the Republican Party has an ambitious judicial agenda and the Democratic Party has next to none, why is the former labeled the party of judicial restraint and the latter the party of judicial activism?”
It’s true that Kagan is not an heir to Brandeis in every respect. Although she likely shares his commitment to liberal judicial restraint, she lacks his crusading devotion to economic populism and opposition to “the curse of bigness” in corporate life and in the public sector. If there is an ideological perspective currently unrepresented on the Court, it’s Brandeis’s economic populism: Not a single justice, liberal or conservative, comes from the Brandeis tradition on this subject. The lack of a consistent voice for economic justice is obvious in the pro-corporate tilt of the Court’s opinions. In 2006-2007, to take one recent session, 40 percent of the Court’s docket was composed of business cases, and the vast majority of those on which the U.S. Chamber of Commerce weighed in were decided in its favor. Many of the Court’s business decisions are activist in the sense that they second-guess, for example, malpractice verdicts by juries. We’re heartened by the fact that Democratic senators plan to put economic populism at the center of the Kagan confirmation hearings and agree that she should be questioned closely on her views about the role of big business in U.S. life and law.
The lack of economic populism in her background aside, Kagan is an excellent choice in every other way. Not surprisingly, she has been assailed by enforcers of ideological purity on both the right and the left. (Some on both sides have also indulged in loathsome speculation about her sexual orientation, a matter which—even if her self-identification were unclear, and it is not—should be of no relevance to her ability to serve on the Court.) Conservatives seem to grasp that she is capable of standing up to the Court’s far-right bloc, which has spent years pushing constitutional law in a radical direction. Meanwhile, some on the left are disappointed because they were hoping for a justice who could spearhead a new era of liberal activism. Instead, Kagan appears to belong to a third tradition: the tradition of progressive judicial restraint that was personified by Brandeis and that has now been endorsed by ourcurrent president. We are confident that Obama has found a justice who can carry this tradition into the twenty-first century.