For the last 25 years, Americans have been given a Hobson's choice when it comes to the Supreme Court, a choice that has served the right wing exceedingly well. But thanks to the Court's recent string of pro-corporate decisions, culminating in the infamous Citizens United v. FEC, progressives have a once-in-a-generation opportunity to take back the debate on the Supreme Court.
As Slate's Dahlia Lithwick has pointed out, the Republican message machine has managed to convince America at large that only two kinds of Justices exist: rigorous conservatives who scrupulously apply the original intent of the Constitution, and carefree liberals who flaunt the law to rule for whichever party their big, soft hearts prefer. It's a myth, but it didn't spring up from nowhere. It's the direct result of a concerted effort pushed by conservative ideologues like Ed Meese and supported by Ronald Reagan, George Bush, and eventually the entire GOP machine.
For decades, this campaign has paid enormous dividends to the Right, with ultra conservative judges frustrating progressive goals and allowing elected conservatives to trample our Constitution. But over the last few years, a series of decisions by the Roberts Court have exposed its flaws and given progressives an opening to take back the conversation.
Most notably, the Court ruled in Citizens United v. FEC that Congress couldn't put limits on corporate influence on elections, allowing corporate behemoths to pour millions, eventually billions, of dollars from their corporate treasuries into campaigns to support or defeat particular candidates.
The impact of the Court's decision will be enormous, but it also exposed the lie in decades of GOP talking points. In its wake, the GOP leaders can't talk about originalism -- the founders, with their deep skepticism of corporate power, would undoubtedly have considered the decision appalling. They can't talk about refusing to legislate from the bench -- the decision cast aside carefully crafted legislation enacted with bipartisan support. They can't talk about judicial restraint -- the majority overturned decades of Court precedent. And they certainly can't talk about "just calling balls and strikes" -- in baseball terms, Citizens United was the equivalent of grabbing the bat and using it to beat the pitcher.
Meanwhile, as John Roberts and Company have been engaged in mutilating the Court's precedents, progressives have been engaged in the deeply un-sexy work of developing serious scholarship about a judicial philosophy based on constitutional fidelity: keeping faith with the full text, history and essential principles of the Constitution, a document that has been amended by generations of Americans to make sure that We the People means all the people, not just a privileged few, and certainly not just corporations.
Progressives have a chance to talk about the Court and the Constitution in a new way, and President Obama seems to be on board. Instead of using a paler shade of the Ed Meese rhetoric perfected by the Right (remember "judicial modesty?") the President is talking about how our country needs justices who have a common sense understanding of how the law affects individual Americans. He's even taking direct aim at Citizens United, saying that "in democracy powerful interests must not be allowed to drown out the voices of ordinary citizens." And he's right.
The Constitution protects the rights and liberties of individuals, and it gives us a democratic process by which we can hold powerful interests, including corporations, accountable for their actions. The Constitution doesn't, it turns out, belong only to the handful of men who drafted it two hundred years ago. It belongs to us, and it's still relevant to the unprecedented challenges we now face.
Ironically, it's thanks to the far-right bloc on the Court that Americans are more open than ever to hearing this message. Given the national disgust with the level of influence corporations hold over our government and our lives, Citizens United has touched a nerve with progressives and the general public. Other decisions by the Court limiting our ability to hold corporations accountable for sex discrimination, oil spills and consumer safety have proven that Citizens United wasn't an anomaly.
It's time to start taking ownership of the law again, and the confirmation process for Solicitor General Elena Kagan's nomination to the Supreme Court is a superb place to start. Progressives have an opportunity to frame the debate on our terms, and we need to take it. Senators need to ask questions about judicial philosophy and General Kagan needs to answer them.
We need to know whether Elena Kagan will embrace a philosophy of constitutional fidelity as fervently as Justice Scalia has embraced originalism. It's far too soon to know if Elena Kagan will become a leader in the mold of her mentor Thurgood Marshall. But if we can wrest the conversation away from the far-right's framing, we'll be in the game for the first time in decades.
The chance to change the conversation we have about the Court, the law, and the Constitution doesn't come along often. All that progressives have to do is take it.
Follow Michael B. Keegan on Twitter: www.twitter.com/peoplefor
Doug Kendall: We Need to Stop Leaning into Scalia's Punches
The Court's monumentally wrong ruling in Citizens United v. FEC has laid bare the underbelly of the conservative legal project. It's time for progressives to have that honest brawl about why the Constitution itself points in a progressive direction.
I know that most Americans believe that a republic must be ruled by laws and those laws must apply to everyone in America.
I wonder how many Americans are becoming aware of the fact that America is a nation no longer ruled by laws that apply to all its citizens which means we are no longer a republic.
When a nation refuses to prosecute and bring to justice those two war criminals Cheney and Bush who are bragging about their war crimes then that nation is not ruled by laws.
When our nation allows CIA agents and war contractors to commit war crimes, when it allows people in the financial markets to steal billions and millions from the people, when it allows corporation to kill their employees due to criminal negligence, when it allows its leaders to lie to the people so they can make war against other nations, when it allows war profiteers and governmental contractors to steal billions each year, allows corporations to destroy our nations natural resources and America's legal systems refuse to prosecute these criminals and instead either lets them pay fines or ignores what they are doing instead of putting these people in jail for long prison sentences which poor people would be sentenced to if they committed such crimes.
The truth is America's legal systems are unjust, unfair, corrupt and criminally incompetent and as a result America has become a lawless society.
You can only read and interpret what is written ....
To the extent anyone points to a document that is not something they all signed off on -- e.g. a letter, a contemporary statement, a newspaper article, etc. -- that is not an expression of the intent of "the founding fatherS" but just of "A founding father."
Some so-called progressives, who really are liberals or Socialits, say that the Supreme Court is twisting the Constitution to suit its purposes. They don`t want to go through the amending process provided in the document; for many decades until about 1977 the Court was liberally activist. Some ot those decisions have since reversed. Now liberals and Socialists complan in ths same way conservatives did in the past.
ashmont
The constitution is simply a set rules that the government must live by (including limiting its power). The judicial role is (as it always is) is to resolve disputes. Whether those disputes are between the state and criminal suspects, or the state and claimants that the state is violating the constitution. Interpretation is a natural part of this dispute resolution, but changing the rules due to the "times we live in" is ridiculous. The court doesn't need leaders. It needs people that can apply the law without bias (You know. As if they were wearing a blindfold.).
Thank you for an interesting article. Progressives have not yet mastered the art of finding the right words with which to "take over" debates; we are, rightly, I believe, concerned with accuracy, for which we sacrifice emotional connection. The Republicans have no such scruples, and so we get terms like "government takeover," "death panels," and others that have no connection with actual situations. We need a good wordsmith to find us the subliminally stirring words that nevertheless maintain basic truths.
In the interests of accuracy, and in reference to your second paragraph, I'd like to offer you the relevant parts of two definitions -- I'm quoting from Webster's New International Dictionary of 1928. Though the words are often misused, their actual meanings (unlike some provisions in the Constitution) have not changed in the intervening 82 years.
Flaunt: To display ostentatiously; to make an impudent show of; to parade obtrusively; as, to flaunt one's vices.
Flout: To mock or insult; to treat with contempt.
Sincerely,
Babaval
Sure they can.
"the founders, with their deep skepticism of corporate power, would undoubtedly have considered the decision appalling. "
True, but that does not undercut the appeal to originalism, since the decision in Citizens United was based upon the 14th amend, which was passed by Congress in 1866. That is where the debate over whether corporations are persons for purposes of the Constitution is directed if you are an advocate of originalism. The framers might have also had a great disdain for the concept of women voting, but the the concept of originalism does not require us to interpret the 19th amendment through the lens of 1789 America. The concept of originalism requires us to interpret the 19th amendment through the lens of America circa 1919.
http://www.nytimes.com/2008/03/16/magazine/16supreme-t.html?_r=1&scp=1&sq=supreme%20court%20chamber%20of%20commerce&st=cse
Citizens United was about ordinary citizens getting together to tell the world (or at least the voting public) how horrible a certain politician was. The is exactly why freedom of speech was identified as a natural right. So the government can't tell us not to criticize them. I think the for-profit corporate total came to about $3k. Game changing?
"the founders, with their deep skepticism of corporate power, would undoubtedly have considered the decision appalling." If the founders were Wilson and FDR, but they weren't. There are many decisions the founders have probably rolled over in their graves about, Roe, Kehoe, 95% of the decisions made in the 1930's, but this one isn't even close.
If you can't dare mention the Federalist Society cabal that has hijacked our court or what was our court, then your not addressing the issues at all and Kagan got a Standing Ovation from that vile pack of usurpers she also endorsed their pernicious Co Founder for the criminal Bush administration!
She's practically a Fed. Soc. Groupie!
Also Scalia has proven he is no originalist by far from Bush v. Gore to Citizens Untied Sacila is a Sacliaist and let's not forget their over turning the Exxon Valdez settlement!
Kagan is much to cozy with these ghouls that have brought more disgrace to the court than any since Dred Scott!
Obama is fraud for appointing her, she no Thurgood Marshall Michael and she'll overturn much of Justice Steven's work as well!
First question to ask her is does she think Corporate "Personhood" has corrupted our system of government if she says no, then throw her out in the street!
Money leads to corruption. More money leads to more corruption.
http://bit.ly/dontpayyour2010taxes
The problem has been that claims, particularly on the right, have been made since last summer in contexts (the media, unruly town halls, facebook, twitter, etc.) that don't demand evidence or allow immediate rebuttal.
Indeed, Palin has practically turned that strategy into an art form.
DEMAND debates! Progressivism WINS whenever it goes up against conservativism in an open, fair and full discussion.