POLITICS MAY 7, 2010
As soon as Justice John Paul Stevens announced that he would leave the Supreme Court, President Obama and progressive groups said the next justice should be an economic populist. Stevens’s successor, Obama declared, should be someone who “knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.” Senator Patrick Leahy, the chairman of the Senate Judiciary Committee, has held a series of hearings on the way the Roberts Court has protected “big business rather than ordinary citizens.” And People for the American Way and the Alliance for Justice recently released reports chronicling the pro-corporation leanings of the Roberts Court.
The hope that the next justice will be a check on the power of corporations is entirely appropriate. After all, Stevens holds the seat that was previously occupied by William O. Douglas and Louis Brandeis, two of the leading anti-corporate crusaders of the twentieth century. And, while Stevens can’t really be described as an economic populist like Brandeis or an environmental champion like Douglas, his recent dissent in Citizens United—in which he objected to the majority’s ahistorical and activist equation of corporate speech with individual speech—was a tour de force of populist indignation.
Yet none of the leading candidates for the Court appears to be an economic populist. I’m an enthusiastic admirer of Judge Merrick Garland and Solicitor General Elena Kagan, both of whom I’ve known for years (my brother-in-law is also Kagan’s deputy), and of Judge Diane Wood, whose opinions have been consistently impressive. All, in different ways, would make excellent justices. But, like all the current members of the Roberts Court, Democratic and Republican alike, none can be described as an economic populist in the Brandeis or Douglas tradition.
Why the absence of liberal economic populists from the shortlist? When you look at the three justices who have occupied the Stevens seat for the past century, all were leaders, before their nominations, in progressive political movements that had grassroots support. Brandeis’s opposition to the “curse of bigness” in economic and political life was shaped by the Progressive movement, which he came to exemplify—a coalition of farmers, industrial workers, urban social reformers, and small business groups, who persuaded state legislatures and then Congress to pass antitrust laws, minimum wage laws, and banking regulations. Douglas’s populist sensibility was shaped during the late 1930s as chairman of FDR’s Securities and Exchange Commission, where he garnered headlines by attacking corporate greed. And Stevens, a former antitrust lawyer, made his name as a good-government Republican investigating judicial corruption in Chicago in the late 1960s. (Unlike Brandeis and Douglas, however, Stevens was not a consistent champion of small business in antitrust cases or of environmental plaintiffs once on the Court.)
Since the 1960s, grassroots progressives have focused on non-economic issues: reproductive choice, for example, or civil liberties in an age of terrorism. That means that the current Supreme Court candidates had their legal sensibilities shaped in a political environment that was less preoccupied with questions of economic justice. There is simply no contemporary equivalent to the Progressive movement out of which Brandeis emerged, and there hasn’t been in a long time.
That’s a shame, because the most important issues the Roberts Court will confront over the next decade involve the constitutionality of environmental measures and economic regulations passed in the wake of the crash of 2008. In contrast to the Warren Court era, these battles will pit conservative judicial activists (who will be attempting to use the courts to reverse political defeats) against liberal proponents of judicial restraint (who will be seeking to uphold laws enacted by Congress). But, as was the case during the Progressive and New Deal eras—when liberal advocates of judicial restraint like Brandeis also fought to prevent conservatives from overturning economic regulations through the courts—it will not be enough for liberals simply to champion judicial deference for its own sake. The next justice will, like Brandeis and Douglas, need to make a substantive case for why these regulations are indispensable to protecting American democracy from the narrow interests of a corporate oligarchy. Brandeis and Douglas’s opinions helped to inspire the progressive movements in which both had built their careers, ensuring that there was an ongoing conversation on economic matters between the Court and the American people.
Although the next justice may not be an economic populist, the confirmation hearings ahead are an opportunity to cast the spotlight on the intersection between economic populism and the law. Leahy and other Senate Democrats should use the hearings to ask the nominee to discuss these questions in depth. And, looking forward, the progressive legal community needs to begin focusing on issues of economic justice—so that future Supreme Court shortlists do not lack for candidates committed to the economic vision of Louis Brandeis.
Jeffrey Rosen is The New Republic's legal affairs editor.