May 7, 2010

"The hope that the next justice will be a check on the power of corporations is entirely appropriate."

Writes Jeffrey Rosen:
After all, Stevens holds the seat that was previously occupied by William O. Douglas and Louis Brandeis, two of the leading anti-corporate crusaders of the twentieth century....
Anti-corporate crusaders? Sure, pick an anti-corporate crusader, Obama, and let's see how the back-and-forth in the Senate Judiciary Committee plays out. I mean, the nominee will still be confirmed, but in the rest of the political arena, leading up to the November elections? That would be brutal for the Democrats.
Yet none of the leading candidates for the Court appears to be an economic populist....

Why the absence of liberal economic populists from the shortlist?...

Since the 1960s, grassroots progressives have focused on non-economic issues: reproductive choice, for example, or civil liberties in an age of terrorism. That means that the current Supreme Court candidates had their legal sensibilities shaped in a political environment that was less preoccupied with questions of economic justice....
The Supreme Court itself stopped its own progressive forward glide when the opportunities for expanding constitutional rights arose in the context of redistribution of wealth (which is what Rosen and his ilk spin as "economic justice").
That’s a shame, because the most important issues the Roberts Court will confront over the next decade involve the constitutionality of environmental measures and economic regulations passed in the wake of the crash of 2008.... [I]t will not be enough for liberals simply to champion judicial deference for its own sake. The next justice will, like Brandeis and Douglas, need to make a substantive case for why these regulations are indispensable to protecting American democracy from the narrow interests of a corporate oligarchy....
If "environmental measures and economic regulations" are going to be passed, then why is anything more than deference to legislatures needed? Why should a Supreme Court Justice think he could bolster arguments for deference to democracy by expressing enthusiasm for the substance of the choices that legislatures have made?

The judicial role is strengthened by the appearance of neutrality and fidelity to law. Conversely, judges undercut their own power when they make it sound as though they are reaching their decisions because of their support for legislation that is challenged as a violation of constitutional rights. When arguments for constitutional rights fail, it should be (or at least appear to be) because the claimed rights don't exist, not because the rights claimants' interests are "narrow" and run counter to what the majority wants. Rights are supposed to work against the preference of the majority, so we should be wary of someone who says courts must "protect[] American democracy from... narrow interests." He is saying rights are not rights.
Although the next justice may not be an economic populist, the confirmation hearings ahead are an opportunity to cast the spotlight on the intersection between economic populism and the law. Leahy and other Senate Democrats should use the hearings to ask the nominee to discuss these questions in depth. 
Great! A bloodbath. Sounds exciting. I'll watch.

42 comments:

The Drill SGT said...

Leahy and other Senate Democrats should use the hearings to ask the nominee to discuss these questions in depth.

and Democrats forcing a Democratic nominee to go on record favoring wealth redistribution and economic populism will help Obama how?

PatCA said...

Translation of the leftist doublespeak:

"reproductive choice" - abortion on demand.

"protecting American democracy from the narrow interests of a corporate oligarchy" - replacing the narrow interests of the corporate oligarchy with those of the bureaucratic oligarchy.

Quayle said...

[I]t will not be enough for liberals simply to champion judicial deference for its own sake.

Like the deference of Kelo? Or how about the huge deference the liberals gave to state's rights in Row v. Wade?

The next justice will, like Brandeis and Douglas, need to make a substantive case for why these regulations are indispensable to protecting American democracy from the narrow interests of a corporate oligarchy....

Its not even "replacing the narrow interests of the corporate oligarchy with those of the bureaucratic oligarchy" that I fear.

I fear replacing the narrow interests of the corporate oligarchy with the anti-democratic rule of 5 so-called elite justices of the SCOTUS.

William said...

Property rights should not be an afterthought. They are a human right, and, moveover, property rights are the keystone in the arch of all human rights....Robbery is the sincerest form on property redistribution.

Beta Conservative said...

You should have an "ilk" tag. Posts including ilk are among your best.

rhhardin said...

Human motivation does not change when somebody goes to work for the government; but the need to work effectively disappears.

JAL said...

He is saying rights are not rights.

Well of course, because rights aren't rights until the right people say they are, and they can give them with one hand and take them away with the other. What ever works for the moment.

Rights which are pre-existant to the US Federal government do not exist in their universe. You know -- those inalienable ones?

edutcher said...

Oh, yes, let's have an anti-corporate crusader just like The Zero. One who's on the take to everybody, in their top 3 recipients of campaign cash, making those secret back-room deals garage and Alpha claim are what Republicans do.

Yes, by all means, one like that.

AlphaLiberal said...

Ann Althouse, OTOH, has no problem with the PRO-corporate crusaders now on the court.

I just hope whoever he appoints can restrain the appalling judicial activism of this Republican Court.

And, maybe we will see rulings that, if corporations are to have all the same rights as citizens:

A) They can also be subject to the death penalty (see: Massey Energy)

B) They can vote.

C) They must pay taxes at the same rate as human citizens.

D) They can't marry corporations of the same sex.

Food for thought, all you corporate power lovers out there!

Alex said...

Ann Althouse, OTOH, has no problem with the PRO-corporate crusaders now on the court.

Name me the "pro-corporate crusaders" that have made unconstitutional rulings in favor of corporations.

AlphaLiberal said...

Roberts. He who reached out and grabbed the Citizens United case in order to expand the rights of corporations to control elections.

But, by all means, show me where the US Constitution provides that corporations shall have the same rights as individuals, fewer responsibilities, and more power.

Alex said...

Roberts. He who reached out and grabbed the Citizens United case in order to expand the rights of corporations to control elections.

Nonsense. The SCOTUS simply found that McCain-Feingold was unconstitutional. The correct decision. You just want anti-corporate crusaders, and fuck the constitution.

Alex said...

Look at:

http://en.wikipedia.org/wiki/Citizens_United_v._Federal_Election_Commission#Criticism

As usual the lefties were completely OTT, typified by Olby:

Keith Olbermann of MSNBC said that with this decision "within ten years every politician in this country will be a prostitute" and compared it to the case Dred Scott v. Sandford, an 1857 case that held that African-Americans could not be citizens.[59]

This is why the American people can't take liberals seriously anymore. Comparing case like this to Dred Scott. Calling people who question AGW as equivalent to Holocaust deniers, etc...

Alex said...

Here's the link

Criticism of Citizens United decision

Alex said...

Oh and Obama calling the tea partiers "teabaggers" the other day. Has an American President EVER used such a slur against a major American constituency? This is a NEW low!

AlphaLiberal said...

The teabaggers called themselves teabaggers, even after they were informed of the slang use of the term.

But all of a sudden now it's not politically correct.

It's not like he was saying they like to fellate testicles.

And, I had to listen to Reagan and Bush Deux rip on liberals from the bully pulpit constantly. So spare us your corny manufactured outrage.

Alex said...

It's not like he was saying they like to fellate testicles.

Since at the time only idiot college students knows what "teabagging" means, it's intellectually dishonest to claim that tea-partiers who used that term initially knew what it meant. Now we all know what it means, it's a disgusting slur. I guarantee that every time Obama says it he loses one point in approval rating.

AlphaLiberal said...

Ha ha. Youse guys are funny.

Since at the time only idiot college students knows what "teabagging" means, it's intellectually dishonest to claim that tea-partiers who used that term initially knew what it meant. Now we all know what it means, it's a disgusting slur. I guarantee that every time Obama says it he loses one point in approval rating. .

First, bad grammar.

Second, they were told what it meant and said they didn't care. Some continue to claim the label for themselves. Remember that Teabagger youtube a few weeks ago?

AlphaLiberal said...

Anyway, back to the topic of the thread. Alex, do you think that, if corporations are to have the same rights as humans and citizens, they should also be subject to the death penalty?

How about Massey Energy fighting safety improvements in a mine that killed nearly 30 people?

LilyBart said...

How about a justice that will be a check on the power of Government?

Casey said...

Prof. Althouse,
Don't you think Rosen should know that the "anti-corporate crusader" William O. Douglas penned the dissent in United States v. Auto. Workers (1957) wherein he would have found the ban on corporate independent expenditures unconstitutional?

Douglas' dissent, joined by Warren and Black, was cited glowingly and pretty much followed by the Citizens United majority (See slip op. pp. 27-28).

AlphaLiberal said...

We have checks on the power of government in America. It's called the "separation of powers."

But modern corporations were not invented then and had not been granted the rights of individuals. So there is little check on the powers of corporations.

How about a justice who will be a check on the powers of corporations, instead of a handmaiden?

YoungHegelian said...

Frau Professor Althouse,

You know well, as a legal academic that the modern post-marxist lefty follows critical law theory and doesn't believe in anything as naive as legal "neutrality". For them, all legal analysis is driven by societal power structures, whether the legal actors involved know it or not.

Since there is no neutrality, there is either hegemony of their views or the opposition. They prefer their views.

Do I buy these arguments? No, but I realize that if we seek either to understand or to stymy the modern left, we must chop at the base of the ideological tree and not at the branches.

Alex said...

Anyway, back to the topic of the thread. Alex, do you think that, if corporations are to have the same rights as humans and citizens, they should also be subject to the death penalty?

How about Massey Energy fighting safety improvements in a mine that killed nearly 30 people?


You're fucking nuts.

Comrade X said...

How about a justice who will be a check on the powers of corporations, instead of a handmaiden?

corporations hold no power over me except GM and Chrysler and health insurers who want to tax me to death and aren't really corporations anymore. if corporations hold power over you might try stiffening your spine.

AlphaLiberal said...

So, corporations can kill and not face the same penalties under the law as individuals?

That's very clearly an admission that corporations are not the same as individual human beings. Therefore, they should not be accorded Constitutional protections given individual human beings.

Or aren't you and this Republican Supreme Court cherrypicking the rights you would give corporations?

jeff said...

A) They can also be subject to the death penalty.

Aren't you guys the reality based community? This is just dumb.


D) They can't marry corporations of the same sex.

You think corporations are currently getting married? And are a particular sex?


Re:citizens united....Are you for the 1st amendment, except when you disagree with the speech?

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech......"

You somehow see a "unless this speech is from a group of people rather than an individual person"?

You're really off your game these last few days.

JAL said...

@AL
A) They can also be subject to the death penalty (see: Massey Energy)

Unions too?

B) They can vote.

Unions try to seriously influence elections and politics (SIEU anybody? Andy Boy at the WH how many times?)

C) They must pay taxes at the same rate as human citizens.

This I don't know, really -- what are the tax obligations of unions? [They trumped the bond holders in the auto buy out, didn't they?]

D) They can't marry corporations of the same sex.

Yeah there used to be anti-trust rulings -- but does that apply to unions?

McCain-Feingold was unconstitutional from the get go. It put limits on individuals as well as corporations.

AlphaLiberal said...

Why is putting corporations to death "dumb?" they can't be electrocuted but they can be terminated, dissolved.

Seriously, just for a moment, corporations kill. If you believe in the death penalty for humans who kill why let off corporations?

And why simultaneously grant select human rights to corporations?

It seems like a fair question.

JAL said...

@AL Second, they were told what it meant and said they didn't care.

Show me.

And not one or two scatorical individuals who made the news after the MSM ignored the thousands of Tea Partiers multiple times.

I was never "told." I had to look it up. I care.

Newsflash AL; It is DIGUSTING the the vast majority of Tea Partiers.

And -- WHY, if there really is nothing distateful and disrespctful, about it, does the left and the POTUS take such smug glee in using it to refer to a very large group of Americans?

Synova said...

The only people working for economic justice are the Tea Partiers.

Ritmo Brasileiro said...
This comment has been removed by the author.
Ritmo Brasileiro said...

Althouse blogs these topics as if political bribery isn't a powerful impediment to democracy itself, or at least worthy of keeping in check.

Other than that, thanks for the nice long flatulent post about some supposed right claimed by "the minority" to bribe and extort your way into office!

Ritmo Brasileiro said...

"reproductive choice" - abortion on demand.

Contempt for reproductive choice: Forced pregnancy on demand.

Ritmo Brasileiro said...

Since at the time only idiot college students knows what "teabagging" means, it's intellectually dishonest to claim that tea-partiers who used that term initially knew what it meant. Now we all know what it means, it's a disgusting slur.

Indeed! What reasonable person who enjoys having his testicles sucked on would want to be compared to an uptight and psychopathic weirdo who protests the president with bizarre signs comparing him to Hitler and the Joker? What a disgusting way to demean that person!

Alex said...

Indeed! What reasonable person who enjoys having his testicles sucked on would want to be compared to an uptight and psychopathic weirdo who protests the president with bizarre signs comparing him to Hitler and the Joker? What a disgusting way to demean that person!

Smearing ALL tea partiers because of the actions of a few. Typical Alinskyite tactic.

Synova said...

"Contempt for reproductive choice: Forced pregnancy on demand."

Contempt for reason: Equating voluntary actions resulting in pregnancy with forced impregnation of women.

Paul Zrimsek said...

We'll never have legal equality between individuals and corporations until we empower courts to liquidate individuals for failure to pay their bills.

AlphaLiberal said...

Responding to JAL @ 4:46:

Teabagger Pride.

And the link I previously posted show shows the warm embrace of the Teabagger label by the TPers.

AlphaLiberal said...

Back to something in the general area of the thread topic....

Are you a Cafeteria Constitutionalist? Do you think the Supreme Court should selectively give some rights enjoyed by humans to corporations (as long as it helps the Republican Party, I guess?)

Or do you believe in the Constitutional value of equal treatment before the law?

If corporations are to be given extreme free speech rights, then why should every other right - and responsibility - follow?

Death penalty for Massey Energy!

Kirk Parker said...

Contempt for history: being unaware that, even in the most anti-abortion states, a D & C was commonly part of the post-rape procedure.

Methadras said...

Ritmo Brasileiro said...

Contempt for reproductive choice: Forced pregnancy on demand.


To spread or not to spread? What is your excuse again?