Kagan Hearings Day 4: Is the Roberts Court Pro-Business? As if!
The last day of the Kagan hearings arrived, and it was about as exciting as watching Paraguay play in the World Cup. Today's was a collection of three panels of about 24 witnesses representing various supporters and opponents of Elena Kagan. The Judiciary Committee delayed the hearings until 4 pm, because of the memorial for Senator Byrd, and ran through the whole proceeding by about 8 pm. Like just about all of the other Supreme Court confirmation hearings of the last 20 years, the witnesses again played their expected parts -- no new bombshells here.
The one thing to notice, though, is that Senate Democrats turned most of their time to a new theme: that the Roberts Court sides with big corporations over the little guy. As a former clerk on the Court (to Justice Clarence Thomas), this is just plain silliness -- the Justices just don't think about cases this way. They are far more interested in the interpretation of the Constitution than whether it happens to help a corporation or a "little guy" in any particular case. They don't even think much about the workings of the free market, I am sorry to say -- the Lochner period, in which the Court did invalidate legislation that infringed the individual right to contract, has been so discredited that none of the conservative justices have called for its return.
A good case in point is one that the Democratic Senators keep returning to -- the 2008 Exxon Valdez case, over which I am sure BP's lawyers have been pouring every day Following a line of recent cases (the most important, from my personal perspective, one limiting how much BMW was liable for concealing a second paint job), the Court rejected the award of $2.5 billion in punitive damages against Exxon for the Alaska spill and limited it to no more than the actual damages (which were around $500 million).
Yes, that decision helped a business. But what the Democrat senators do not mention is that the author of the majority opinion was Justice Souter, one of the Court's liberal members. They also don't let anyone know that conservatives generally have opposed judicial limitations on punitive damages -- Justices Scalia and Thomas consistently have dissented from these cases. Why are they siding with the little guy over big business (limiting punitive damages is perhaps the biggest constitutional agenda item for corporate America)? Because they do not believe that the Court should make up a free-wheeling constitutional right against punitive damages, one that the majority has summoned out of thin air through -- you guess it! -- the Due Process Clause. And liberals have often voted in the majority of these cases -- somehow choosing big business over the little guy -- because they like it when judges find new rights in the emanations and penumbras of the Constitution.
As none of this has anything to do with whether Kagan is fit to be confirmed to the Supreme Court, one supposes that Democrats have spent their hearings testing out some kind of new campaign theme for the November elections. It is perhaps spurred by favorable polling for President Obama's criticisms of the Citizens United case, which struck down limitations on corporate spending on elections as a violation of the First Amendment. But I expect that the thinking man and woman will see through this: most Americans, I suspect, want their judges chosen for their constitutional views, and not whether they take the economic position of the parties into account.
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Jun '10
Re: Kagan Hearings Day 4: Is the Roberts Court Pro-Business? As if!
Last time I read it, the Constitution didn't divide us into big guys and little guys. If there are any "big guys" mentioned, who deserve careful suspicious scrutiny, they're in the government.