With her impressive resume and intellectual ability, Solicitor General Elena Kagan is obviously qualified to be a Supreme Court judge. We’ll hear all about that as senators and journalists dig into the record of President Barack Obama’s nominee to replace Justice John Paul Stevens.
But the confirmation process can be, and should be, more than a conversation about a single Supreme Court justice. We need a national conversation about our Court and our Constitution. Kagan’s confirmation process is exactly the right time to have it.
Since Chief Justice John Roberts and Justice Samuel Alito were confirmed during George W. Bush’s presidency, the Supreme Court has undergone significant changes. In the past few years, Court watchers have seen a pattern of decisions that twists the law to favor corporations and other powerful interests over the rights of ordinary Americans.
The Court’s Citizens United vs. Federal Elections Commission ruling opened the door for enormous corporations to pour unlimited amounts of money into supporting–or defeating–particular candidates. In Ledbetter v. Goodyear, the Court ruled that a woman was required to sue for sexual discrimination almost two decades before she learned she was being discriminated against. In Gross v. FBL Financial Services, the Court made it harder to hold corporations accountable for firing people based on their age.
The Court ruled in Coeur Alaska v. Southeast Alaska Conservation Council that corporate polluters could pour mining waste directly into lakes, even when the Environmental Protection Agency had clear rules against it. And recent events make it particularly timely to point out that in Exxon Shipping Co. v. Baker, the Court decided to arbitrarily reduce the penalty paid by Exxon for devastating the economy and environment of the Prince William Sound after the Exxon Valdez oil tanker ran aground.
In each of these cases, the Supreme Court went out of its way to rule against individual Americans and the general public, even though laws on the books protected us. That isn’t the system the framers intended.
When our nation’s founding generation wrote the Constitution, they created a charter that did two things: It protected the rights and liberties of individual Americans, and it established a mechanism for us to solve our problems through the democratic process. The document they created was designed to preserve our most essential values: democracy, freedom, and equality for all people under law.
At the time it was ratified, the Constitution excluded more than half the people in the country. But generations of Americans have amended the Constitution over the years, and courts have interpreted it to make sure its promise of fairness and equality included voting rights for women and people of color, the abolition of slavery, the integration of our schools, and the protection of our most vital rights from new and unexpected threats.
We need a Supreme Court justice who understands that history.
As the Senate confirms the next Supreme Court justice, the question isn’t whether Elena Kagan can win enough votes to be confirmed. She can. The question is whether we care enough to ensure that our Constitution continues to protect the values we care about as Americans. Does it still protect our rights while letting us democratically solve our problems?
If we embrace that vision, corporations will still win some, even many, cases at the Supreme Court, and well they should. But that vision will also preserve our ability to hold powerful interests accountable without being thwarted by a few judges in long black robes.
The real question we need an answer to in the next few months is: Do the Constitution and the Supreme Court still belong to all of us?