Jonathan Chait

Supreme Court Fights, Beyond Social Issues

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Judicial nominations have mainly served as proxy battles for cultural rifts. E.J. Dionne explains that Sheldon Whitehouse and Al Franken plan to shift the focus onto the considerable role the courts play in economic battles:

This week’s hearings over Elena Kagan’s nomination to the Supreme Court will 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....

“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 own approach earlier this month in a powerful speech to the American Constitution Society that has already 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.

Jeffrey Rosen's 2005 New York Times magazine essay about the Constitution in Exile movement explained the most dramatic feature of conservative economic legalism, which is an attempt to use Courts to impose economic libertarianism.

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