June 4, 2010

Kagan and the Corporate Court (2 of 2)


In part 1 of my post on the impending installation of Elena Kagan on the supreme court, I discussed how in The Federalist #78 Alexander Hamilton defended the lifetime tenure “during good behavior” for federal judges on the ground that he expected the courts, more than the other two branches, to come reasonably close to working purely in the public interest.
Hamilton’s conception was premised on the courts and especially the “supreme” court maintaining it independence of the executive and of other forces in the polity. As we know, by now the SCOTUS has been corrupted by corporatism and is a rogue institution. As I briefly discussed in part 1, this isn’t a new development which could be viewed as an aberration or the result of Bush extremism. On the contrary, the corporate struggle in the courts goes back to the 19th century, and the definitive victory march commenced in the 1970s. The process was only stepped up under Bush, the broad acceptance of the imperial presidency, and now Obama’s embrace of all Bush concepts. The Citizens United decision was more of a formal consummation than a practical change.
(We can say that Obama’s embrace thus formally embraces all Bush/Cheneyism as not extreme or aberrational but as within the mainstream of today’s polity. So if Bush policies were anti-constitutional, and they all were, then it follows that the polity as such is anti-constitutional. The system is a parasitic kleptocracy and is not sovereign. This goes for both kleptocratic parties and most existing pressure groups, which are really corporate astroturfs. I’ll discuss this further in an upcoming post.)
Obama’s alleged opposition to that decision is belied by his consistently pro-corporate actions. So it’s an accident at best, and more likely a cheap political lie. And there’s no reason to believe that Kagan on the court would’ve voted differently. Indeed, the ineptitude of her argument as solicitor general may have stemmed from her lack of enthusiasm for the position she had to argue.
Obama’s record as a corporatist and fanatic regarding executive power is bad, and we have to bet that he intends for Kagan on the court to be pro-corporate and pro-imperial presidency. That brings us to Kagan’s record, such as it is, on civil liberties and the “unitary executive”.
Just as on everything else, Kagan’s record here is remarkably barren, given the limitless opportunities she’s had to speak out on anything she wishes. (By contrast, I’m an obscure blogger with few opportunities, yet I’ve already left a record vastly more copious than that of this considerably older elite legal cadre.)
We see that at her core she’s a sociopathic careerist, as I discussed in the first post.
However, we can piece together a skeletal record. The most important structural point is that Kagan affirms the Bush/Cheney policy frame for the “war on terror”, i.e. permanent war and a society which is always supposed to feel it is “at war” and conform accordingly to whatever the power structure commands. This war is of course a complete fraud, but one of the hallmarks of a kleptocratic, and therefore anti-constitutional, cadre is her support for the Global War on Terror and shilling for the general Permanent War social frame, a Big Lie. (Another hallmark is continued support for the Bailout and telling the Big Lie that the Bailout was “necessary” and accomplished necessary and worthwhile aims. I’ll get to this too in an upcoming post.)
Kagan has also, as solicitor general, happily argued Obama’s anti-American positions on detainees (here she seemed more comfortable than in the CU case). Her “progressive” defenders claim that as a DoJ cadre it’s her job to argue Obama’s position, and that doesn’t necessarily mean she agrees with it or will decide that way once on the court.
(Notice any logical flaws in that argument? Even leaving aside the question of why Obama would’ve wanted a solicitor general who didn’t agree with his positions, we can certainly assume he wouldn’t want to put anyone on the supreme court who isn’t in full accord with him on the things most important to him.
As for the CU case, as I said I think Obama’s political dissent is just for political show, and that it’s not an accident that the administration’s, i.e. Kagan’s, argument was haphazard.
Also, aren’t all these liberals who say Kagan secretly disagrees with Obama on civil liberties and presidential arrogation the same ones who moronically say Obama himself really doesn’t agree with all the things he somehow keeps doing? Oh well, I’ll leave it to others to further plumb the cesspool of the corporate liberal mindset.)
At any rate, even if Kagan isn’t truly an anti-freedom ideologue but just a sociopathic careerist, how is that any better? Her partisans themselves are saying she’s the kind of person who’s content to “follow orders” and “do her job” even where it comes to assaulting civil liberties; that’s vile. Civil liberties like habeas corpus are too much core American values to be subject to the vagaries of careerism. By definition if you can be so cavalier about something like this, you either don’t care about American values or hold them in contempt.
Not that anyone will ask the still-too-few vigilant people of America, but do we want someone on the court who holds these values in contempt? Or is it that the SCOTUS already holds them in contempt, and Kagan will reinforce this?
One thing which looks clear enough from the record is that Kagan exalts the imperial presidency. As early as the Clinton administration she argued for broad discretionary executive authority. (We should recall that although Bush escalated the use of “signing statements”, it was Clinton’s DoJ which formalized the concept.) Then throughout the Bush years of ever more extreme assertions of the authority of the president to not only freely interpret the law (which assertions Kagan already explicitly agreed with) but to disregard it altogether, Kagan remained in her sociopathic careerist silence mode. From a cadre at her level, who had spoken out on the issue previously, we can take that as implicit consent.
And of course since becoming Obama’s head litigator she’s aggressively argued on behalf of Obama’s aggressive continuation of the entire Bush/Cheney imperial-presidency agenda.
This leads us back to Hamilton and his Federalist #78. Hamilton thought the judiciary would be the “least dangerous” branch because it was the least powerful. (The executive enforced the laws and commanded the armies, the legislature wrote the laws and had the power of the purse.)

It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Hamilton believed the best safeguard against the courts becoming tyrannical on their own was the simple fact that the judiciary was reliant upon the executive to enforce its judgements, and therefore wouldn’t be able to run too far rogue. The courts would either reflect the agenda of the executive or at any rate couldn’t be completely antithetical to the executive. Of course, this assumes the executive itself hasn’t become a kleptocratic rogue, and that the court isn’t simply following the lead of this rogue executive.
In fact, the pro-corporate, imperialistic agenda of the last several administrations adds up to decades of subversion of the constitution and betrayal of the public interest. Obama’s own corporatist, imperialist pretensions are just the latest, terminal escalation of the historical trend. We now have a full-fledged, entrenched kleptocracy. It has abdicated sovereignty.
Although judicial review isn’t an issue we’re discussing here, Hamilton’s discussion of it leads to some observations on sovereignty which are highly relevant to us.
In an extended discussion Hamilton derives the authority for judicial review from the constitutional facts that the legislature is representative of the people while the written Constitution, embodying the will of the people, is superior to the legislature and its written laws. So for the polity to have any integrity, it follows that some authority has to be the arbiter where the legislature is alleged to have run rogue of the Constitution and the people.

A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

I add to this that the sovereignty of the people, also known as the constitution, is always implicitly superior to the written Constitution as interpreted by the courts if the courts themselves have run rogue. (It’s the same logic as Hamilton gives for enshrined judicial review.)
So we have the implicit order of rank. The people/sovereignty/constitution is prior to the written Constitution, which is prior to the legislature and the written laws, and the courts are to arbitrate between the Constitution and the legislature, while the people’s constitution is also prior to the courts themselves.
I’ve written at length on the corporate hijacking of the law, from the way it’s written in the corrupt legislature to the way it’s enforced by the corrupt executive to the way it’s adjudicated in the corrupt courts (indeed, how access to the courts themselves is increasingly rationed by wealth).
Since we’re talking about the law and the courts, I’ll just give a few links which focus on that aspect. I hope with these and other pieces I’ve done a passable job of making my case that this a rogue system.
The corporatist subversion of law, smuggling in the fraudulent anti-constitutional concept of “corporate personhood”;
Access to the law: Parts one, two, and three.
On the supreme court itself as a rogue, with special reference to the Citizens United case: Judicial Activism and Judicial Abdication.
Hamilton says the supreme court can never endanger liberty “so long as the judiciary remains truly distinct from both the executive and the legislature.” The condition of it losing this distinction has been met. It turns out that Hamilton’s confidence in the institution of permanency in office for federal judges only worked partially well at its best, and has by now ceased working.
Today the supreme court (like the Senate) is among the most discredited institutions. By now permanency in office is a detriment to liberty. The court best represents the inertia of the status quo (which is why it’s lagged behind the Reagan revolution in the other two branches). Much as the Senate is more structurally conservative (i.e. beholden to the status quo inertia) than the House, so the courts are the most conservative – how difficult it is to be placed, the slow rate of turnover, the permanent tenure.
So now that the SCOTUS has become a tool of corporatism, it will remain most intractably such a tool for the longest tenure, if left to itself. Therefore we should clearly recognize and teach its illegitimacy and the unlikelihood that any hope for change can be fulfilled through the courts. From here on the best we might get from the corporate courts are increasingly infrequent pro-public accidents.
So that’s the answer to the questions I asked above about the SCOTUS. It no longer embodies the constitution nor is it a faithful arbiter of the Constitution. It no longer lives up to the principles Hamilton laid out. Since Obama is a hardened corporatist, and since Kagan’s record is clear on the fact that she’s either a sociopathic careerist or a corporate ideologue herself, we can be sure that she’ll act to further carry the court along the logic of the kleptocratic status quo. That’s definitely Obama’s intention for her.
Of course there’s nothing freedom activists can do about this for now. Kleptocracy will traverse the suicidal path of its logic for as long as it can muster the power to do so.
All we can do for now is realize the fact that the supreme court is irremediably corrupt, that it’s hopeless to expect anything good from the courts in general, that the court has zero authority but only the power still invested in it by the kleptocracy. It’s not a part of the people’s sovereignty.
We must recognize this and where possible be teachers of it. Since the nomination of a new member to the supreme court is always a “teachable moment” regarding the judiciary, I wrote these posts. 


  1. Great post as usual Russ.

    I really don’t have much to add. One hopes that Kagan turns out to be a Souter, but Obama was never incompetent when it came to ensuring that the “right” people were in the right places, even if they’re tax cheats, sexists, etc…

    The Kleptocracy must be served.

    Comment by jimmy james — June 5, 2010 @ 10:33 pm

  2. Yup, it seems like everyone he’s installed is doing what they were supposed to do, loot on behalf of the rackets.

    Of course, by now the kleptocracy has mostly selected for criminality, so even if you selected at random you’d have a good chance of picking the “right” people.

    It seems like TARP inspector Barofsky may be a kind of rogue from their point of view, but that’s a rare exception.

    Comment by Russ — June 6, 2010 @ 5:31 am

  3. About a month ago I struggled through Kagan’s 106 page article on free speech in Harvard Law Review. I can’t find a free copy now, but the conclusion boiled down to something like: gov’t can abridge speech if its motives are good. (my unschooled opinion) Oy vey!

    Comment by Jessica — June 7, 2010 @ 7:41 am

  4. Since I just brought up free speech, it appears that the alternative media is being assaulted again. Do you suppose the FTC has ever heard of the Stamp Act? And I thought the FCC was the federal agency involved with the Internet, etc., but apparently it is now the FTC. Evidently this is some form of trial balloon being floated by the FTC.

    Comment by Jessica — June 7, 2010 @ 7:53 am

  5. Jessica,

    That’s clearly what she thinks. Like you read, it does turn out she has something of a paper trail on this subject:


    So the liberal hacks can’t argue here that she’s “just doing her job but doesn’t necessarily agree”, like when recently the SCOTUS rejected a similar argument 8-1 in a free speech case she argued.

    I read about the FTC proposal. It’s really stupid (especially since the FTC has no authority to do anything like that; it was basically the equivalent of their putting out an op-ed), but we’ve been hearing these rumblings about an MSM bailout for awhile now.

    It actually makes sense from the kleptocratic point of view. The corporations aren’t willing to support their own media prostitutes, but their bought government can steal from others to do so. That’s how all the bailouts work. Socialize all costs.

    Did you read my earlier post, “Today’s Stamp Act”, where among other things I compared the net neutrality issue to the Stamp Act controversy?


    Comment by Russ — June 7, 2010 @ 9:40 am

    • Just pulled up your April 5 Stamp Act essay. Don’t know if I was reading your blog then. More than 5 years ago, my husband and I were having dinner at the home of a friend. One of the guests was a Carnegie Mellon business professor who was headed to Yale. Most of the others were in secondary and post-secondary education in Pittsburgh. They were proposing taxing the Internet and my husband interjected a comment about the Stamp Act. They pounced on him with an immediate ad hominem–they called him an anarchist. (At the time, I thought it was an insult, but have since reconsidered.)

      This is another situation where we need to get the “greens” involved— gasoline to transport the raw material and the huge rolls paper, and the air and water effluents of production, the ink (environmental poison)and the printed pages that end up in land fills or the energy required to recycle. Do you think we can expect even one amicus brief from the lot of them?

      Comment by Jessica — June 7, 2010 @ 12:33 pm

      • I don’t know, it seems there’s so much paper involved in all levels of bureaucracy that for now that’s a lost cause. 🙂

        I’m trying to picture the type who, in the act of advocating a kind of tax, would call a dissenter an “anarchist” as an insult. That is, they consider the anti-tax argument to be coming from “their left” as it were.

        I guess they must’ve been corporate liberals. (I’m assuming “conservatives” wouldn’t have been advocating any kind of tax in the first place.)

        You’re right, being called an anarchist is really a compliment. That’s the true combination of anti-statism, anti-corporatism (i.e. anti-large bureaucratic structures) and true civil libertarianism.

        Comment by Russ — June 7, 2010 @ 4:13 pm

  6. So do we fit the definition of classical liberalism?

    Comment by Jessica — June 7, 2010 @ 5:14 pm

    • You mean the 19th century spirit of Emerson, Mill and others? I try to in spirit and mind, as much as possible.

      Comment by Russ — June 8, 2010 @ 3:56 am

      • Thanks for the reminder, Russ. I have to reread “On Liberty.” Another reflection on homeschooling—Mill was educated by his father and a proponent of school choice. Did you know that Mill proposed giving more votes to those who were educated as a way of keeping power in the middle class? I wonder what he would say today about all the Harvard lawyers in the business-government complex.

        Comment by Jessica — June 9, 2010 @ 1:57 pm

      • I guess he’d take it as more proof that money and formal education don’t equal virtue, intelligence, love of freedom, or even becomong really educated, as opposed to learning to be a serviceable cog in the corporate machine.

        I’d say most “higher education” has also been hijacked. 🙂

        I reread On Liberty last summer. I should dig out the notes I took and see what I wrote.

        Maybe the single best thing I’ve read on freedom is Isaiah Berlin’s Two Concepts of Liberty, available online:

        Click to access twoconcepts.pdf

        Comment by Russ — June 9, 2010 @ 3:44 pm

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