The Senate Judiciary Committee will voted 13-6 to advance the nomination of Elena Kagan to the Supreme Court of the
Senator Franken offered this insight on the agenda of the conservative wing of the Court: “There is such a thing as judicial activism, there is such a thing as legislating from the bench and it is practiced repeatedly by the Roberts Court, and it has cut in only one direction—in favor of powerful corporate interests and against the rights of individual Americans.”
And, contesting to Justice Roberts’ self-depiction as an uninterested umpire, Senator Whitehouse said, “precedents, whether of old or recent vintage, have been discarded at a startling rate. Statutes passed by Congress have been tossed aside with little hesitation, and constitutional questions of enormous import have been taken up hastily and needlessly…. There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.
Senator Schumer, too, commented on this phenomenon: “The rightward shift of the Court under Chief Justice Roberts is palpable. In decision after decision, special interests are winning out over ordinary citizens.” Senator Cardin warned that “If you work for a living, if you are a woman, or if you are worried that corporations can buy a louder voice in an election than hardworking, everyday Americans, you need to keep an eye on the activism being practiced by this Supreme Court.”
Many Democratic Senators focused their questions for Kagan on a number of Roberts Court decisions that highlight the intense corporate bias of the current Court, including Citizens United v. FEC, Exxon v. Baker, Ledbetter v. Goodyear Tire & Rubber Co., Rent-A-Center v. Jackson, Leegin Creative Leather Products, Inc. v. PSKS, Inc., Rapanos v. United States, and Gross v. FBL Services.
Nearly all of the Democratic Senators on the Committee spoke out against the landmark Citizens United decision, which opened the floodgates to corporate spending in elections.
- Senator Franken noted that a full that 80 percent of Americans disagreed with the decision. He also lambasted the Court for guaranteeing an outcome that favored corporations by changing the issue after the case had been tried, argued, and appealed, noting “if that isn’t outcome-oriented, I don’t know what is.”
- Senator Whitehouse made a similar critique, noting that the Court had to engage in inappropriate fact-finding rather than limiting its consideration to the record before it in order to reach the decision it did in Citizens United.
- Senator Kaufman warned of the “massive amounts of money” large corporations have at their disposal and the potential for corporations to “spend hundreds of millions of dollars if they decide it was in their interest to do so and completely overtake whatever individual expenditures we have in the country.”
· Comparing the Citizens United decision to the right-wing, anti-regulation Lochner decision, Senator Schumer warned: “I am concerned that we’ll soon find ourselves back in the Lochner era of activist judging….In allowing corporations to spend unlimited sums to influence elections, Citizens United showed just how much the current conservative bloc on the court, in its zeal to bend the Constitution to an ideology, has lost sight of the practical consequences of some of its decisions.”
- Senator Franken predicted what some of those practical consequences might be, warning that corporations would not only spend huge sums of money on elections, but also “when we try to protect against oil drilling in deep water when we don’t have safety precautions or Wall Street fraud. They’re going to spend their money against the consumer and environmental laws that protect our families and our homes.”
Exxon v. Baker
With oil gushing into the
· Senator Feingold criticized the decision, stating: “It’s not hard to read this decision, especially in light of what’s happened in the Gulf, as the Supreme Court giving a free pass to reckless corporations, even when our health and environment are at stake. This is also one of many decisions over the last decade where the Court has bent over backwards to find a way to protect corporate interests.”
· Senator Cardin too criticized the decision, noting that along with the Rapanos decision, it had the effect of weakening “environmental protections that were hard-fought in Congress.”
- Senator Kaufman warned that the Court’s decision to slice the plaintiffs’ damages by two billion dollars could have the effect of lessening incentives for companies like Exxon or BP to take appropriate safety precautions to avoid potential spills.
Ledbetter v. Goodyear Tire & Rubber Co.
While Congress has rectified the injustice created by the Roberts’ Court decision in Ledbetter by passing the Lily Ledbetter Fair Pay Act, numerous senators expressed frustration over the decision and the Court’s seeming inability to foresee the real-world consequences of the decision.
- Senator Cardin railed that the Court used the case to articulate a new test that was “incredible to believe” and which made it “impossible” to discover pay discrimination and bring a timely claim.
- Senator Whitehouse stated that “the Ledbetter case allowed an employer to get away with wage discrimination as long as it his it successfully from the employee.”
Senators Whitehouse and Franken discussed the Rent-A-Center v. Jackson case, handed down the week before the Kagan hearing. The case involved a challenge to the enforceability of a mandatory arbitration agreement employees were required to sign as a condition of employment.
- Senator Whitehouse criticized the Court’s decision: “Only last week, the Rent-A-Center decision concluded that an employee who challenges as unconscionable an arbitration demand must have that challenge decided by the arbitrator.”
- Senator Franken described the problematic nature of mandatory arbitration agreements: “These clauses basically say if we violate your fights, you can’t take us to court. You have to take it to an arbitrator. But then the fine print essentially says an arbitrator that we pay who depends on us for work and who makes decisions in secret.” He reached back to criticize a related 2001 decision issued by the Rehnquist court, Circuit City Stores v. Adams, and criticized the Supreme Court for ignoring the legislative history, which indicated that Congress did not intend for employment contracts to be subject to mandatory arbitration clauses. He chastised the Court for its “strained reading of the law” in Circuit City Stores and urged Kagan to give more deference to “the reasons [Congress] passed a law in the first place.” Senator Franken continued his assault on the Court’s favoritism of powerful corporate interests by criticizing the Roberts’ Court recent Rent-A-Center v. Jackson case: “Rent-A-Center argued that only the arbitrator could decide whether the arbitration clause was unfair. Last week, the
sided with Rent-A-Center. Talk about not getting your day in court. Now you can’t get your day in court to get your day in court.”
Leegin Creative Leather Prods, Inc. v. PSKS, Inc.
Senator Cardin commented on the effect of the Leegin decision, which invalidated a rule against corporate price-fixing: “Are you a consumer? Do you buy products for you or your family? If so, the Supreme Court in Leegin – yet another 5-4 split – should be of concern to you too. Here, the Court ignored long-standing precedent to protect big business to perpetuate price-fixing. It was a ruling that put consumers at risk.”
Many senators expressed concern over the weakened environmental protections in effect after the Rapanos case, which restricted the federal government’s jurisdiction over many of the nation’s waterways under the Clean Water Act.
· Senator Cardin criticized the case as a “step backwards” for the environment because of the reduced protection for wetlands under the Clean Water Act.
· Senator Franken, too, expressed concern about the decision: “in Rapanos the Court struck down these regulations, because it said they were too broad, even though they had been in place for up to 30 years or actually necessary to protect
Gross v. FBL Financial Services
Many senators remarked on Gross v. FBL Services, which made it considerably more difficult for victims of age discrimination to prove their case by creating a new rule that in a mixed-motive age discrimination case, the plaintiff must prove that discrimination was the sole reason for the termination.
· Senator Whitehouse lamented that the case “made it harder for a victim of age discrimination to prove his or her case” and Senator Franken noted that the “the
· Senator Schumer remarked on the practical difficulty this decision presented: “courts have recognized that only employers have access to the evidence of their own motivation.”
· Senator Cardin echoed these concerns: “Now, how do I explain to a 50-some-year-old woman with a couple of children who is fired after 25 years in the workforce because the employer wants to hire someone half her age and pay 1/3 the salary, how is she getting a fair shake when the Supreme Court changes the test in order to avoid the current protections we thought we had in the law against age discrimination?”