"Whose Supreme Court is it?"

[Clio the Leo]

Whose Supreme Court is it?
By E.J. Dionne Jr.
Monday, June 28, 2010

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.

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."

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But if 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.

Leading this charge will be two recently elected Democratic senators who are free of the constraints imposed by the controversies of the past, Sheldon Whitehouse of Rhode Island and Al Franken of Minnesota.

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.

http://www.washingtonpost.com/wp-dyn/content/article/2010/06/27/AR2010062703527.html

Sen. Al Franken, D-Minn. , talks with Sen. Sheldon Whitehouse, D-R.I. , bottom, as the Senate Judiciary Committee meets regarding the nomination proceedings of Supreme Court nominee Sonia Sotomayor on Capitol Hill in Washington, Tuesday, July 21, 2009.

[Jennicut]

1. Time to bring up Citizens United.

I agree with Franken. Roe vs Wade will always be important but asking questions that relate directly to how people are effected by big Corps. is a very smart direction to take this in. Rethugs have been the ones actively legislating forever. Look at the current overturning of the moratorium on deep water oil drilling.