05/13/2010 11:18 am ET Updated May 25, 2011

The Roberts Court's Corporate Radicalism: Progressives Need Kagan, SCOTUS Refocus

Progressives' criticisms of the nomination of Elena Kagan to the Supreme Court may well be valid on single, specific issues. But they seem to miss two key points:

  • SCOTUS's Personal Politics:
As Larry Lessig wrote earlier this week, the key to an effective Supreme Court Justice isn't just mastery of the law. It's mastery of High Court politics, especially the politics of persuading one's peers. That is why William Brennan was de facto chief justice for so long; why Nino Scalia's legacy will be surprisingly slight; (and less than the very political Stephen Breyer); and why it is now the congenial but stealthily radical conservative John Roberts, not the trash talking, chest thumping textualist Scalia and originalist Thomas, who calls the shots - as long as his demure ways can keep Justice Kennedy.
  • The Roberts Court's Corporate Radicalism:
To the extent that progressives are focusing on Kagan's judicial views, they are focusing on the wrong ones. The Roberts Court poses a significant threat to mainstream American law. But it is less in the area of executive power - where the current Court on notable occasions ruled against Bush-Cheney's unprecedented power grabs and defiance of the Constitution and international law.

The Roberts Court's radicalism, as has been widely noted, is most pronounced when it comes to corporations. According to the Alliance for Justice, of corporate cases the Roberts Court heard in the 2006-2007 term, it ruled in favor of the corporations 73 percent of the time. Among those cases were the Exxon Valez Damages case (Exxon Shipping v. Baker), limiting the compensation received by Alaskans for the Valez spill; the Corporate Campaign Advertising case (Citizens United), where the Court went way out of its way to overturn the corporations campaign spending ban first advanced by Teddy Roosevelt's Administration; and the Equal Pay case (Ledbetter v. Goodyear), where Goodyear was let off the hook for decades of pay discrimination because Lilly Ledbetter didn't sue within 180 days of the first instance of discrimination - even though she had no idea she was being discriminated against for years.

Making the Roberts Court's Corporate Radicalism a theme of the Kagan hearings should be Progressives' SCOTUS focus right now. Kagan, the Administration and Judiciary Democrats need to play confirmation politics and get Kagan confirmed. In the post-Bork world, that means playing it safe, like it or not. But progressives should use every media interview, every press release, every hearing - every ounce of the confirmation process - to highlight the Roberts Court's Corporate Radicalism.

In fact, now would be a great time for a documentary on the Roberts Court's Corporate Radicalism by the Alliance for Justice, American Constitution Society, People for American Way, or another group.

The Kagan hearings are the best opportunity Congress and the American people have to let the Supreme Court know what we think about how they're doing.

After all, as we've recently learned, John Roberts and Sam Alito think American citizens - or at least the President of the United States - should only speak to the Court during oral arguments during a hearing. (Their attitudes seem similar to Wall Street CEOs who believe shareholders should only be seen at annual shareholder meetings - and even then, not heard.

But then, it should come as no surprise Roberts and Alito think like CEOs, inasmuch as they think the United States is constituted by We the Corporations - not We the People.