It seems appropriate on the day that Elena Kagan went before the Senate Judiciary Committee for a seat on the Supreme Court to quote another woman pioneer. It was Eleanor Roosevelt who said, "Justice cannot be for one side alone, but must be for both."
Unfortunately, the First Lady's admonition seems almost quaint. We are in the midst of one of the most political times in the modern history of the Supreme Court. In fact, scholars say four out of the five most conservative justices who have sat on the Court since the New Deal are on the bench right now. And the five current conservatives, enthusiastically led by John Roberts, are using their one-seat majority to shred long-standing principles and precedents to favor one side -- the corporate side.
Sen. Orrin Hatch, echoing the well-worn Republican mantra, asked in the Kagan hearing yesterday whether "the Constitution will control her or will she try to control the Constitution." That's an odd statement, coming from someone who neglected to ask John Roberts or Samuel Alito the same question. Perhaps he should have, because with decision after decision coming down on the side of big business, the Roberts Court has proven itself to be the willing and eager participant in an aggressive conservative effort to advance a political agenda that consistently favors big corporations over average citizens. The evidence is clear: In close decisions, the conservative quintet favors the Chamber of Commerce position 84 percent of the time.
The Kagan hearing is focused on her qualifications and philosophy, as they must be. But they are also about the future of the Court itself and the ideological battleground she will enter when she is confirmed. Sen. Al Franken got it right today when he said, "There is such a thing as legislating from the bench. And it is practiced repeatedly by the Roberts Court, where it has cut in only one direction: in favor of powerful corporate interests and against the rights of individual Americans."
Sen. Franken and many others mentioned the notorious Citizens United case as evidence of a Court running amok. But that's not the only instance of this Corporate Court straying well off the mainstream path to make sure that every decision day at the Court is CEO Appreciation Day.
Our research shows that in the past several years, the Court has gone out of its way to radically rewrite laws in order to shield big business from liability, insulate corporate interests from environmental and antitrust regulation, make it easier for companies to discriminate against women and the elderly, and to enable powerful interests to flood our election process with special interest dollars.
Just last week, the Court kept up the drumbeat of attacks on the interests of Americans who have the misfortune of not being corporate titans when it told Antonio Jackson he was out of luck in challenging workplace discrimination. His employee contract required arbitration to settle disputes, and the Court, in a case of circular logic only people with a serious agenda can muster, said that the only entity that can judge whether the arbitration process is fair is the arbitrator himself; the courts have no role. The message: America's courts are not for people like Mr. Jackson.
We believe it's time to fight back against the spurious claim from Republicans that anyone who is not a rock-ribbed conservative is an out-of-control judicial activist and that their judges are perfectly neutral "umpires" with absolutely no ideological bias of any kind. As Sen. Sheldon Whitehouse said today about Roberts' umpiring crew, "the strike zone for corporations gets better everyday." Indeed. That's why Alliance for Justice has launched a campaign to expose the Corporate Court for what it is and to support efforts in Congress to undo as many of its most harmful decisions as possible.
The Supreme Court has been transformed into the Corporate Court and we're all at risk of losing fundamental freedoms and of surrendering the legal system to ever-greater corporate power. Elena Kagan today called for a Court that is devoted to "a fair shake for every American." Those plain words reflect the hopes of all Americans for their judiciary. We look forward to Justice Kagan taking that old-fashioned ideal into the Court's chambers where, sadly, it seems to have been forgotten.