Will the court 'become a conscious agent overturning progressive laws the way the court was before the New Deal'?
Simon Lazarus is public policy counsel to the National Senior Citizens Law Center and a frequent commentator on the Supreme Court and the intersection of the law and economic and labor issues. I called him today to ask about what the next justice will need to do, and be prepared for, when they arrive at the court. A lightly edited transcript of our interview follows.
EK: Do you know Elena Kagan personally?
SL: No, I don't.
EK: By reputation?
SL: I didn't go to Harvard. I went to Yale, thank God. But I have friends on the faculty of Harvard, and it was just an unimaginable snake pit. The fact that she was able to bring some measure of reconciliation to that place is an extremely impressive achievement.
EK: This is one of those things that's coming up in a lot of my interviews. Everyone agrees she's brilliant and hardworking, but they really emphasize her tactical intelligence, her ability to negotiate out to the position she wants. I guess more people have seen it because she worked on the Hill and in the executive branch. But I don't know how to weight it. How important are these skills?
SL: I think it's an important skill, but it's a different skill. Being a judge is a cerebral enterprise. It's not like political negotiation where you're trading this piece of the decision for that piece of the decision. It's more being able to understand other people's intellectual frameworks and figuring out ways to work within those frameworks and nudge them in the direction of results you favor. Stevens was just extraordinarily good at this, and I think Breyer is good at it too. But on this court, which is so dominated by intellectual legal superstars, you have to be able to play at that level in order to get in the game in the first place. For instance, I don't think Earl Warren would be enormously effective in moderating Roberts's or Kennedy's views because they wouldn't take him seriously. That doesn't mean Warren wasn't a great justice. But it's a different court today.
EK: People complain that Kagan's written record is thin, so what are you looking to hear from her testimony?
SL: We are in an era where the issue is whether the court will become a conscious agent overturning progressive laws the way the court was before the New Deal. For instance, the question of whether the court will overturn the new health-care law. The culture war issues are becoming superceded by questions of validity and effectiveness of statutes designed to protect people. The court's assault on these statutes has not just been high-profile constitutional decisions where the court says the law is invalid. They've been in the legal underbrush, narrowly construing laws so they're not workable or eliminating remedies so they can't be enforced or stopping consumers and businesses from getting into court with claims in the first place.
That's been largely unnoticed, though Sen. Pat Leahy and, increasingly, President Obama have figured it out. A year ago, the White House seemed to consider the court a very low priority. But this year, you have Obama projecting a substantive vision of the court's role, and strongly and repeatedly going out of his way to attack the court for bending laws to disadvantage ordinary people. The shock of the Citizens United decision and the litigation challenging the health-care reform law has been a wake-up call.
EK: A lot of what you're saying sounds like a defensive vision for legal liberalism. That's a change, right? The old version was that conservatives wanted a passive judiciary that wouldn't try to legislate from the bench while liberals wanted an active judiciary that saw social justice as part of its mandate. But you're saying that it's now flipped and conservatives want the active judiciary while liberals want a more passive court that won't impede legislative progress. Is that right? And if so, is that a sufficient philosophy for liberals?
SL: Over the last 20 or 30 years, conservative majorities have done so much damage to very significant New Deal and Great Society and kindred social legislation that undoing that damage would actually be a very affirmative broad goal to set. And the philosophy behind that goal, a philosophy that Justice Stevens held close, is that it's critical for judges to interpret statutes to promote the basic goals that Congress had in mind when it enacted the statute.
That might sound obvious, but a lot of the techniques that conservatives have used have given them an excuse to defy certain reform goals. Take the Lily Ledbetter case. The situation there was an ambiguous statute of limitations on when you can bring a case for paycheck discrimination. The Supreme Court said there's a 180-day statute of limitations, and that means you need to file within 180 days of the violation. The court held that the clock began ticking when the managers set her pay 25 years ago, not when she got her last paycheck. This sounds like technical gobbledygook, but most people who're discriminated against on pay don't know it. So this is a way of construing an individual term of the statute in order to defeat the intent of the statute. And this is occurring all over the place. So if you want one touchstone for a justice that would be appropriate for this era, it would be someone who is committed to restoring judicial deference to the broad purposes of statutes.