Kagan’s Confirmation: Getting the Judiciary to do the Legislature’s Job

E.J. Dionne is sounding awfully triumphalistic these days:

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 centre 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.”

I wonder how corporations got that way…

The answer is simple: the legislature (with help from the executive) let them get that way.  Through a combination of the shrinking of our world and a lot of lobbying, multinational corporations have gained a great deal of power.  But they couldn’t have gotten the job done without the complicity of Congress, which has let them do it through Democrat and Republican control of both ends of Pennsylvania Avenue.

Now the clarion call goes out for citizens to have the possibility to challenge all of this in the judiciary, with people who will gladly rewrite the laws to suit their own vision.

There are at least three problems with this rosy vision:

  1. The usual victims of this kind of thing are small businesses.  Large corporations, with their deep pockets and legal budgets to match, can outlast such assaults much better than small businesses.
  2. Who’s going to go to bat for us when the government is the bad actor?  Anti-corporatism is frequently underpinned by the acceptance of the idea of the natural beneficence of government, when in fact both are perfectly able to abuse their powers when it suits them.
  3. Why should the judiciary consider its chief role in doing the work the legislature is too cowardly to do?  That’s one of the core problems with American politics: it’s too easy for our legislators to duck the serious issues and hide behind the skirts of the judiciary.  And if the latter is happy to assume that role, they’re off the hook even more.

In the long run, it challenges the whole idea of elected, represented government.  And when that’s out of the way, the fun (for those in power) really starts.

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