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What Kind of Supreme Court?

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Posted on Jul 1, 2010
AP / Susan Walsh

Supreme Court nominee Elena Kagan is seen on a video screen as audience members listen.

By Stanley Kutler

(Page 2)

Critics of judicial intervention often take refuge in a demand for constitutional amendments. But the path for amendment, like that of legislation, often is blocked by inertia or irresponsibility. It is not difficult to “buy” one-fourth plus one of state legislators to block change. Could we reasonably expect a malapportioned Congress and state legislatures to provide an amendment mandating desegregation? Or reapportionment?   

Certainly there are limits to judicial wisdom and to the idea of committing broad policymaking power to judges. As such, we need not deviate from the post-1937 prescriptions: Judges should presume the constitutionality of legislative policy, but they should apply severe scrutiny to legislation affecting processes of free political discourse, association or balloting which are the foundation for making substantive legislative and executive policy choices.


In truth, judges have prompted, even forced, legislatures and executives to deal with problems they would rather ignore. Sadly enough, despite contemporary rhetoric, our political institutions and our society have come to expect—and accept—such a judicial role. Witness the process and conclusion of United States v. Nixon. Inadequate, improper slogans are no substitute for a sensitive appreciation of either our institutional dilemma or our political and social realities.


The Justices who upheld segregation in Plessey in 1896, no doubt regarded themselves as “umpires,” mechanically making the call as something right or wrong. But later umpires made different calls, guiding and enabling us to a better course, and to “a more perfect union.”

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Kagan’s hearings did not discover Kagan’s beliefs about much, if anything. Instead, they once again offered senators a vehicle to argue their views. Republicans forcefully state their “judicial philosophy”; perhaps Democrats might usefully educate the audience on the court’s historical commitment to free up our political processes and keep open the channels of persuasion. We might then have had the hearings that Elena Kagan once so eloquently described.

Stanley Kutler is the author of “Judicial Power and Reconstruction” and other writings.


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Peter Knopfler's avatar

By Peter Knopfler, July 11, 2010 at 10:16 am Link to this comment

Kagan is part of Obama`s plan to engineer the Supreme court Justices,
Kagan could break the tie, on Guns control, Immigration, Prisoner treatment, torture, Freedom of speech, freedom of press, freedom to criticiz the White House, all this will be re-examined, re-emgineered,
Kagan will get the proper language down
to RIP YOU OFF OF YOUR RIGHTS. Walk softly,
carry big Hammer,
Obama`s Way! Or the Hiway, like Arizona.
Supreme court is suppose to be the watch Dog for Justice, not a LAP DOG FOR OBAMA!

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Blackspeare's avatar

By Blackspeare, July 6, 2010 at 7:16 am Link to this comment

Like Shakespeare said, this past SCOTUS confirmation hearings were much ado about nothing!  When a liberal president nominates a liberal justice to replace a liberal justice or vice-versa nothing changes.  However, when fate intercedes and we have a liberal president nominate a liberal justice to replace a conservative justice or vice-versa, then and only then will we see blood.

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By nemesis2010, July 4, 2010 at 2:20 pm Link to this comment

The goal is—and always has been—to maintain the Status Quo at all costs. The appointments are important to the different factions that make up the Status Quo. Albeit united in its common goal—the oppression and suppression of the Have Nots—the Status Quo, the highest levels of the Haves, suffers much strife in the unceasing battles for supremacy of power. The Supremes are nothing more than another part of the Status Quo’s henchmen class. 

Change the names, the political and/or religious ideology, the race, the country, whatever, it simply doesn’t matter, it always ends up the same –no left, no middle, no right, just different levels of “haves” and “have nots.”

How stupid a race are we that the few—who are greatly outnumbered—are allowed to oppress and dictate to the many.

Wealth (the few) dictates to society, rather than society (the many) dictating to wealth.

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By the worm, July 3, 2010 at 1:12 pm Link to this comment

Baiting Kagan to engage some ideological wrangling is preposterous.

What ever the ideology or inclination expressed by the ‘nominees’, the result is
always the same. Twist the ‘intent’ to be what the wealthy desire. Reason is truly a
whore in the hands of the Justices. But for the props (robes and benches), they are
no different from Senators who have been bought off and pretend to be guardians
of the Constitution.

Please, let us be done with this.

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By felicity, July 3, 2010 at 9:34 am Link to this comment

John Roberts’ “I’m just an umpire, I just call the balls and strikes” comment was ‘qualified’ on the following day by Biden, “Yeah, but you get to set the strike zones.”

And then there’s all the hullabaloo from the Republicans on Justices who are result-oriented, of course implying that Republican Justices are never result-oriented.  Really? A pro-Justice after the Bush v. Gore decision (which basically elected Bush) “We’re just doing this but it isn’t precedent.  It doesn’t apply to anyone else.”

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Peter Knopfler's avatar

By Peter Knopfler, July 2, 2010 at 2:44 pm Link to this comment

I agree with all the comments! To know her is to
reject her. The problem I have is that a life time
job,
appointment for life, one needs to know about this
life called Kagan.
No experience as a judge, always behind the Curtain
of educational institutions.
Therefore what has been her life experience, No
Marriage, no Children, What and who is she,
Is She Gay, or non sexual, what kind of person, only
for herself. She is only 50 years old, she, if
appointed, 40 years of INFLUENCE, so other than books
she read, mama hen to Harvard what else, more
personal info is needed.

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By ardee, July 2, 2010 at 1:20 pm Link to this comment

The underlying message of Mr.Kutler’s well written article is, to me at least, that our government ( all three branches) is just going through the motions, playing out an increasingly tired plot line that serves only to mask the truth beneath; that we the people are no longer uppermost in the minds of govt. Excepting of course for a brief interlude for elections. That time is then spent lying to the electorate in a slightly different fashion, and spending the corporate campaign moneys on propaganda with never an intent to fulfill a single promise made.

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Hulk2008's avatar

By Hulk2008, July 2, 2010 at 7:58 am Link to this comment

Without the hearings we would have missed the one-liner between Sen. Graham and Ms. Kagan: 

When Sen. Graham asked where Kagan was on Xmas last year, she supposed at first he meant something related to the underpants bomber.  He clarified and just asked where she was that day.  She responded that being a typical Jew she was in a Chinese restaurant.

There’s no way that the process would ever sway Senators’ votes in any direction; it’s just political theater.  Perhaps the hearings should be shortened to a few brief comments from each questioner followed by a single brief statement from the candidate - all prepared in advance.  The interviewers could get their political innuendos in front of the nation and the candidate could provide snappy elusive comebacks.  A short session would cost a lot less money.

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Trailing Begonia's avatar

By Trailing Begonia, July 2, 2010 at 7:30 am Link to this comment

What kind of Supreme Court?  Nothing short of the best that corporations can buy, of course.

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G.Anderson's avatar

By G.Anderson, July 1, 2010 at 9:25 pm Link to this comment

What kind of supreme court? More of the same, no change of any kind.

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By squeaky jones, July 1, 2010 at 8:36 pm Link to this comment
(Unregistered commenter)

What kind of Supreme Court?  Certainly not a peoples court; however, it is a court for the stinking rich.

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