May 28, 2010

Kagan and the Corporate Court (1 of 2)


So it’s supreme court season again. Obama has named the dubious Elana Kagan as his choice to replace the most consistently liberal member of the court, John Paul Stevens. Stevens, while not anti-corporatist, was the most “passively” corporate judge. Based on Kagan’s systematically sparse record, we have to assume she’d bring a pronounced pro-tyranny shift to the court. (Someone like Kagan, who gives every indication of being a pure careerist, will always perform as that careerist. You can’t think that “she was only acting that way to get onto the court in the first place, but once there her true public interest concerns will shine through” or some such notion. People aren’t like that. On the court she’ll probably behave exactly as she always has – with an anxious eye toward the elites and what they want.)
Will such a shift be pivotal for the struggle against kleptocracy? Or is the supreme court already a rogue beyond redemption, as I argued in my posts (here and here) on the Citizens United decision? While we need to think more about the implications for civil liberties cases (several important 5-4 decisions, Stevens reliably on the side of real American values, Kagan having shown signs of being careless or contemptuous of those values; I intend to give the matter its own post), regarding corporatism we already have a corporate court, and the 5-4 splits have tended to be between what we can call judicial activist corporatism vs. “regular” corporatism. The Citizens United case was a classic example, with the minority not disputing the fraudulent premise of corporate personhood, let alone the general proposition that we should be ruled by corporate tyranny. They dissented on the more narrow ground that the majority had been needlessly activist throughout, both in how they ordered the case to be reargued and in the breadth of their decision.
So is the court beyond redemption, just like the rest of the kleptocracy? If we look at the evidence of Alexander Hamilton’s magisterial Federalist #78, widely considered the best short elucidation of the written Constitution’s concept of the judiciary, the case looks grim.
Hamilton’s first major point centers on how federal judges should enjoy tenure “during good behavior”.

The standard of good behavior for the continuance in office of the judicial magistracy, is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.

The courts are supposed to comprise an “excellent barrier” against the encroachments of the other two branches. Historically the record has been spotty, with the courts sometimes resisting, sometimes enabling these encroachments. It has worked well sometimes. But today our question is, in the age of kleptocracy, where the entire power structure including “both” of the so-called “two” parties are aggressive functionaries of corporatism, can we ever expect this court to work in the public interest again? It’s a given that no identifiable anti-corporatist will ever be nominated again. So we’d be reduced to hoping for some accident, that once on the court a formerly reliable system cadre will go rogue from the system’s point of view and judge from the perspective of the public interest. I’d say the people should never repose faith in such accidents. That’s just a version of dreaming of winning the lottery. It’s escapism, not coherent political philosophy.
The record of the courts since the onset of full scale kleptocracy in the 1970s has been just what we’d expect – a steady movement rightward in the sense of becoming ever more pro-corporate. It’s both substantively and symbolically indicative that right before he was named to the supreme court, Lewis Powell, generally considered a “moderate” on the court, but at the time a corporate cadre, wrote a strategy memo encouraging corporations to argue systematically in the courts for free speech and other rights like any other “persons” (as part of the vast corporate assault on democracy he recommended). We see how this systematic perversion of the Bill of Rights was a strategy prescribed by the supreme court itself, as it were . The Citizens United case is just the latest and most visibly egregious of its toxic fruits.
Similarly, as I said above Citizens United represents a shift from “regular” judicial corporatism to “activist” corporatism. Back in the 70s and 80s Rehnquist and O’Connor still used to reject some of the more aggressive corporatist arguments, as in Rehnquist’s dissent in the 1986 case Pacific Gas and Electric vs. Public Utilities Commission. To this day even Scalia and Thomas might here and there reject the most extreme assaults, as in 2007’s Philip Morris USA vs. Williams.
Meanwhile Rehnquist and O’Connor were replaced by Roberts and Alito, who were expected to represent the most up-to-date model of the most aggressive corporatist court activism. So far in practice they’ve lived up to that billing, most clearly in Roberts’ ordering the Citizens United litigants to go back and reargue the case on broader, more fundamental grounds than they had argued the first time round, because Roberts wanted to artificially manufacture the opportunity to make a broad court statement of corporate personhood “rights”. Judicial activism doesn’t get more aggressive than that.
So given Obama’s corporate flunkeyism, what can we expect from his appointments? It’s true that with Sotomayor the record is mixed, and so far we don’t have much data. I’d say Kagan’s lack of a record here is probably a bad sign. It’s hard to believe that Obama would appoint a second judge he’s not 100% confident will be pro-Wall Street, for example. There was lots of talk about Obama wanting to appoint a “progressive” judge, which on its face sounds absurd given his radically anti-progressive ideology and policy in general.
If anything, I’d say Obama probably already thinks Sotomayer was his “progressive” appointment, and that this time he needs to fully commit to serving his masters. Sure enough, one thing we do know about Kagan is that she has been a paid adviser to Goldman Sachs.
So in conclusion, we have the general aggressive corporatist trend on the supreme court. In itself Kagan’s record, such as it is, offers zero evidence that she wouldn’t follow this trend, and some evidence that she would. When we place that record in the contexts of Obama’s ideology and policy, and the way careerists behave in general, it looks more sinister. We have to assume that Obama expects Kagan on the court to be a good friend to big corporations, and that she has assured him she will be.
One last point on this sparse record. Today we’re rightly skeptical of formal credentials, and so we don’t care much intrinsically about Kagan never having been a judge.  However, according to #78 Hamilton would have disagreed. On the contrary, one of his chief arguments in favor of giving judges lifetime tenure is that he expects there to be a fairly small talent pool of those who combine the requisite knowledge and integrity.
From our point of view, the most important thing is that for Hamilton to be correct in his pro-Constitution analysis, the career path and talent pool of those he considered “fit characters” would never involve our notorious revolving door, but rather the focused mastery he describes here:

There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity.

Kagan definitely does not live up to this. On the contrary her brief tenure as Solicitor General revealed her to be an ignoramus about the law. When she argued before the court Kennedy had to keep coaching her on what cases she was supposed to cite to bolster her arguments. One characteristic response: “I’m not familiar with that case.” Stevens and Ginsburg seemed similarly exasperated with her buffoonery. So whatever we think of formal expertise, according to Hamilton’s vision Kagan is certainly incompetent. She’s not a “fit character”. She’s “less able and less well qualified to conduct [the administration of justice] with utility and dignity.”
This issue lays bare how not only Kagan herself but our whole kleptocracy is a distortion and perversion of the original concepts of the written Constitution. By original I’m not referring to the fraudulent “originalist” ideology, but simply to the basic principles that animated the constitutional aspiration, thinking, and writing in the first place. As I plan to establish at further length in subsequent posts, the kleptocracy does not embody the sovereign constitution or the written Constitution, but is only a funhouse mirror hallucination of it.
I’ll continue in part two of this post with Hamilton’s ideas about judicial independence of the other branches as being necessary for the judiciary’s own integrity as well as the integrity of the whole system.


  1. How in the hell did we get here?

    Between Kagan, oil spills, and whatever the hell else is going on, I feel like I’m in some sort of unreality: again, the classic b-movie THEY LIVE, or just some schizophrenic dream.

    “Does no one else see it?” I wonder. “Doesn’t anyone else remember?”

    Deep in their hearts I think they do, but few want to articulate it…

    Comment by jimmy james — May 30, 2010 @ 9:31 am

  2. The world has gone insane. We’re simultaneously experiencing the limits of nature (oil, water, the soil, the amount of poisons the globe can assimilate), the limits of the exponential debt model of global economy, and the limits of the neoliberal war on mankind which seeks total domination via this debt slavery.

    Before it’s all over the convulsions will be extraordinary and likely horrific. It’s easy to see why most of the minority who have any sense of all this prefer to hide their heads in the sand. It’s all too terrifying to contemplate, and they see nothing they can do about it, so it’s better to numb and blind oneself.

    And the majority are sheep who can’t sense it, as it’s beyond their capabilities.

    Well, we can only try to spread the ideas of transformation. Although throughout history humanity has lost most of its battles, the battles it won started with such ideas.

    Today we tend these small campfires, toward the goal that someday they’ll become ethical conflagrations.

    That’s all we can do, is attempt it.

    Comment by Russ — May 30, 2010 @ 2:51 pm

  3. […] Tags: Alexander Hamilton, Bush, Clinton, Elena Kagan, Supreme Court — Russ @ 1:58 am   In part 1 of my post on the impending installation of Elena Kagan on the supreme court, I discussed how in […]

    Pingback by Kagan and the Corporate Court (2 of 2) « Volatility — June 4, 2010 @ 1:58 am

  4. […] Kennedy flipping back and forth based on whatever lets him be the center of attention.    [* I've previously proposed that the right classification of judges is not something phony like "strict" vs. "loose" […]

    Pingback by Nothing Works Anymore « Volatility — June 24, 2010 @ 1:16 am

  5. […] always been common sense; by now to still call for it is intentional misdirection), but to reprise my distinction of judicial activist corporatism vs. more passive corporatism.   One of the most frequent […]

    Pingback by Bowman vs. Monsanto; Activist and Passive Corporatism, vs. Anti-Corporatism | Volatility — March 3, 2013 @ 6:09 am

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