POLITICS MAY 21, 2010
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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 bypointing 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 our current president. We are confident that Obama has found a justice who can carry this tradition into the twenty-first century.
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10 comments
As an advocate, Brandeis championed his case and his cause by what came to be known as the "Brandeis Brief", which contained long and detailed facts and figures about the consequences to real people as the result of business practices that would be ameliorated by the legislation he was defending and that was being attacked by business interests usually on substantive due process grounds. Does one believe for a moment that Brandeis viewed judges as mere impartial umpires in disputes between adversaries who are equal before the law. Hardly, because they were not equal then and they are not equal now. Indeed, the Roberts' Court has made it clear that, when in conflict, the interests of business and money will prevail over the interests of the real people once championed by Brandeis. Kagan may not have championed the interests of real people with "Kagan Briefs", but I believe the Editors accurately assess her preference for "progressive judicail restraint" in the mold of Brandeis.
- rayward
May 22, 2010 at 8:01am
I agree with the endorsement, but not the caveat. Brandeis' populism was often in conflict with his judicial restraint, most notably over the National Recovery Act. On policy grounds, Brandeis was right about the NRA. It did suffer from "the curse of bigness", and the court did the New Dealers a favor by sending them back to the drawing board, for the Second New Deal. But doing so was hardly an exercise in judicial restraint. As for the current court, I would rather see liberal restraint across the board. The "liberal" part of that would mean, for example, assuming that Congress did not intend for statutes of limitations to apply so as to make redress of wrongs committed by corporate actors impracticable--that is, give Congress the benefit of the doubt as the branch trying to counterbalance inequality of economic power. The judiciary would be saying to Congress: If you want to favor the private powers that be, fine; you are the elected ones and that is within your authority. But you need to be explicit about it; otherwise, we will assume that you are trying to act in the general and against the special interests.
- dpaup
May 22, 2010 at 10:42am
So what is the distinction between progressive/liberal judicial restraint and conservative judicial restraint? It seems that the exercise of judicial restraint should not depend upon whether the legislation is perceived to advance progressive or conservativce values. Rather, deference to congressional enactments should always occur unless the enactment violates a constitutional limitation on the government's power, or exceeds the powers granted by the Constitution. If the legislation exceeds the authority granted by the Constitution, then no deference is warranted. Of course, the rubber meets the road in determining whether a congressional enactment in fact exceeds Congress' constitutionally granted power. It is that determination that will be heavily influenced by a justice's progressive or conservative values.
- NR143296
May 22, 2010 at 4:26pm
...Of course, the rubber meets the road in determining whether a congressional enactment in fact exceeds Congress' constitutionally granted power. It is that determination that will be heavily influenced by a justice's progressive or conservative values.... So the circle has come back to its beginning and no one's the wiser for it.
- basman
May 23, 2010 at 5:56pm
Kagan has no judicial and virtually no courtroom experience of any kind. She has studiously avoided taking a stand on anything, except (weakly) on military recruiting at Harvard, and has adopted some horrendous positions in the appellate courts as SG rather than standing up for more liberal values. This is because she has no values of her own other than her own professional advancement. Kagan has been a good supporting player, and for the most part has simply done the bidding of more powerful authority figures. Now she will have to rely on her own experiences and values but she doesn't seem to have any. So the Court's conservatives will remain in charge because Republicans, at least in recent years, have not similarly wasted their opportunities to fortify their position. As for Obama's epiphany as to the evils of the Warren Court, it just shows how little he understands about the experience of black people in America, or of the other powerless groups and individuals whose lives are better today because of that Court's "over- reaching." Like him, Kagan (if this editorial is to be believed) has swallowed the conservative hokum about "judicial restraint," which Roberts et al. dissembled about in their confirmation hearings and then promptly forgot as soon as they took the bench. The fact is that no one really knows what Kagan thinks about judicial restraint (among many other things), and we are unlikely to find out until it is too late.
- mlottman
May 23, 2010 at 11:38pm
Well, Basman, I'm not sure where you are going with your little epigram, but we are wiser if we recognize that, in most cases, the Constitution does not lead inexorably to a particular result, such that judges are merely "umpires" who reveal the correct outcome. Constitutional interpretation is necessarily influenced by a justice's own experience and predilections. So that's why a nominee's predilections do and should matter. It woud be absurd for Obama to appoint someone with Alito's or Scalia's perspective on the Constitution, just as it would have been absurd for Bush to have appointed someone of Breyer's or Ginsburg's ilk. Mlottman, I have to agree with you with regard to Obama's comments about the Warren Court. I think that he is overly dismissive of the legitimate role that courts and litigation have played, along with legislative actions and civil unrest, in advancing civil rights and in paving the way for federal civil rights legislation. The Brown decision was "activist" only in the sense that it was resisted by a large portion of the population. But if any result has flowed inexorably from the Consitution, Brown was it. The Brown decision flowed inexorably from the 14th Amendment. And the Miranda decision flowed from the recognition that the right to counsel and right not to testify against oneself, both expressly protected by the Constitution, would be worthless if evidence obtained in violation of those protections could nevertheless be used to convict someone of a crime. An "activist" decision in a perjorative sense is not one that you or I might happen to disagree with as a matter of constitutional interpretation. It is a decision in which the Court exceeds its constitutional role to consider in the first place. Recent examples that come to mind are the Florida re-count case and the Citizens United case.
- NR143296
May 24, 2010 at 8:39am
NR143296: I'm not going very far with my epigram-- which is by definition little--but I fail at not meaning to be cryptic and in fact I appreciate your comments, which I agree with by and large. It's just that it's virtually a truism that judges, particularly at the level of SCOTUS, in hard cases, lead with their predilictions, biases, views of the world, and what have you. Richard Posner has made this point terribly emphatically over the last 20 years or so, the brilliance Ronald Dworkin to the contrary notwithstanding So I'm not sure that repeating that truism is the starting point of wisdom. That said, I'm unfamiliar, as an interested Canadian, with any telling arguments against her. I'm not impressed with the argument of a lack of paper trail as in part it tends to reinforce the necessary selection of judges, politicians and academics to the court. But there is such a robust diversity of sources for selection outside that triad. And, in theory at least, the confirmation process will provide the necessary vetting, where traditional data is in short supply. Also, I'm not inpressed with Beinart's one note argument against her grounded on her position on military recruiting at Harvard. She is acknowledeged to be very, very smart, a fair minded administrator, a once rising academic star and has published a few--like two or three--heavy academic articles that those whaling away against her have probably not read. (I admit that I have not.) She's obviously congenial to Obama so we can begin to sense where she's presumptively at philosophically. And, of course, as you note, it's his prerogative to nominate such a someone. So if there are any: what's the, or, an, argument against her that you find telling and why?
- basman
May 25, 2010 at 2:48pm
p.s I find mlottman's post way over the top and unsubtle, for example: ...As for Obama's epiphany as to the evils of the Warren Court, it just shows how little he understands about the experience of black people in America, or of the other powerless groups and individuals whose lives are better today because of that Court's "over- reaching.... which I could get into more if anyone's interested.
- basman
May 25, 2010 at 2:55pm
On further consideration, I now see that this endorsement is entirely ridiculous, in that it is based (without evidence) on the assertion that Kagan believes in "liberal judicial restraint." The example given of this judicial philosophy is Justice Brandeis' "view that courts should defer to progressive laws and regulations enacted by the states, Congress, and federal agencies." In other words, if this was in fact Brandeis' view, then he left alone the "progressive" laws he liked but was willing to strike down the other enactments he didn't like. This is not judicial restraint; it is simply judging in accordance with one's philosophy and values. And so the term "liberal judicial restraint," as used in this editorial, is both nonsensical and meaningless--and the number of law-related factors that justfy Kagan's appointment is reduced to zero. As Jeffrey Toobin wisely points out in this week's New Yorker, the terms "restraint" and "activism" have little substantive content, but rather depend entirely upon who is doing the classifying and whose ox is being gored: "As is so often the case, in court- rooms and elsewhere, the battle between Obama and the Roberts Court is as much about power as it is about principle; neither side is as concerned with abstract concepts like activism and restraint as it is with winning." So again, we are left with no idea of what Kagan stands for or what will move her to intervene or to stay her hand-- and no reason to support her appointment to the nation's highest court.
- mlottman
May 25, 2010 at 6:43pm
Basman- I did not mean to suggest that I oppose Kagan's nomination. My argument is that it is nonsensical to propose that there is a "liberal" judicial restraint and a "conservative" judicial restraint, as mlottman subsequently notes. I was also disagreeing with Obama's dismissiveness of the important role litigation played in the civil rights movement. I agree that the influence of predelictions, etc., on judicial decision-making is a truism. But there are millions of Americans who appear not to understand that, and they are led by political leaders such as Orrin Hatch, who repeatedly makes the imbicilic statement that courts should interpret the law, not make law. What he means is that courts should interpret the Constitution in a manner that comports with his ideology. And the Hatch mythology was picked up by numerous Republican senators and conservative pundits in opposing the nomination of Sotomayor. So I do think the starting point of wisdom in this context is to understand that a judicial nominee's way of looking at the world matters. That doesn't mean that Kagan's lack of a "record" disqualifies her, but I think it may legitimately be a reason to withhold judgment. I don't necessarily embrace the statement that Obama lacks understanding of the black experience, etc., but I do think he displays a misunderstanding of history. But go ahead and get into it more.
- NR143296
May 26, 2010 at 1:06am