Federal Courts and Nominations

Brandeis’s Seat, Kagan’s Responsibility


IN her Supreme Court confirmation hearings last week, Elena Kagan cited Justice Oliver Wendell Holmes, Jr. as her model of judicial restraint in response to questions from Republican senators who want the court to overturn health care, campaign finance and economic regulations.

Ms. Kagan picked the wrong justice. Holmes was a cold and brutally cynical man who had contempt for the masses and for the progressive laws he voted to uphold. Ms. Kagan would do better to look to the justice whose seat she has been nominated to fill: Louis D. Brandeis. Brandeis, who was succeeded by William O. Douglas and then John Paul Stevens, was not only a great and restrained judge but the most prescient critic of the “curse of bigness” in a time of economic crisis.

Both Holmes and Brandeis were heroes of the Progressive Era, when the constitutional debate eerily anticipated the one that unfolded in the Kagan hearings. Liberals denounced the pro-corporate bias of the conservative Supreme Court, and conservatives countered that only the court could protect economic liberty and personal freedom in the face of an out-of-control regulatory state.

Although Holmes and Brandeis both objected to conservative activist decisions striking down progressive regulations, Holmes, unlike Brandeis, had no personal sympathy for the Progressive movement. An aristocratic nihilist who once told his sister that he loathed “the thick-fingered clowns we call the people,” Holmes believed that judges should vote to uphold virtually all laws, even the ones they hate.

If Ms. Kagan is confirmed, Brandeis will be a far more relevant guide as she grapples with the issues at the center of our current constitutional debates. (Disclosure: I’ve known Ms. Kagan for years and my brother-in-law has been her principal deputy in the solicitor general’s office.)

Like Holmes, Brandeis was committed to upholding laws passed by state legislatures and Congress in most cases. But instead of sneering at the progressive laws, Brandeis eloquently defended their economic and moral justice. He predicted the crash of 1929 and helped inspire the post-New Deal laws separating commercial from investment banking that prevented a crash of similar magnitude until 2008. Finally, Brandeis thought judges should begin with the text and original understanding of the Constitution but then translate the framers’ values in light of new technologies and political movements.

Although Holmes has little to say about the legal issues that concern progressives today, Brandeis can teach us a great deal. For example, Democrats repeatedly insisted during the Kagan hearings that the Roberts court has shown a pro-corporate bias — a charge supported by a recent study by the Constitutional Accountability Center, which found that in the term that just ended, the United States Chamber of Commerce won 13 out of the 16 cases in which it filed briefs, a success rate of 81 percent.

If Ms. Kagan is to change this orientation, she will have to resurrect Brandeis’s concerns about the “curse of bigness” — in business and in government. With vision and clarity, Brandeis warned about how corporate money controlled by “our financial oligarchy” can threaten American democracy and how the reckless gambles that greedy megabanks take with “other people’s money” can threaten the global economy.

Similarly, as Senator Al Franken, Democrat of Minnesota, suggested in the Kagan hearings, the greatest threats to free speech in the 21st century won’t come only from oppressive governments trying to silence political dissidents. They will also come from the titans of digital communication.

At the moment, Comcast, Google and Facebook have more power over who can speak and be heard than any government or Supreme Court justice. To preserve free speech and privacy in the face of that power, Ms. Kagan will need to explore the ways that giant media corporations can threaten liberty, even if they are not formally restricted by the Constitution.

Ever since the rise of the conservative legal movement in the 1980s, liberals have yearned for a justice who can not only challenge Justice Antonin Scalia on his own terms, but also change the terms of debate. As her deft performance in the hearings showed, Elena Kagan has the potential to play that transformative role. To achieve it, however, she needs to develop a positive vision of progressive jurisprudence in an age of economic crisis, financial power and technological change. As a model for this vision, she need look no further than her greatest predecessor.

Jeffrey Rosen, a law professor at George Washington University and the legal affairs editor of The New Republic, is writing a book about Louis D. Brandeis.


Read the original article here.

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