Sheldon Whitehouse Speaks Out Against Supreme Court Radicalism
The recent Senate confirmation hearings for the nomination of Solicitor General Elena Kagan to the Supreme Court was an affair several days in length packed with incisive political questioning and rigorous discussion. For many viewers these hearings served as the first forum to become acquainted with the nominee set to fill the vacancy left by Supreme Court Justice John Paul Stevens. Unlike many nominees, Kagan has not previously been a Judge, leaving many of her legal opinions open to the extensive questioning of the Senate. But few questions were as effective in shedding light on the strikingly radical direction of our current court, and the need for well tempered minds to fill the vacated benches, as that posed by Senator Sheldon Whitehouse (D-R.I.)
Senator Whitehouse accurately portrayed our present Supreme Court as a court driven by ideological partisans who render decisions along the slenderest of margins (5-4), who selectively apply judicial philosophy and who favor corporations to the detriment of individual Americans. The Supreme Court allowed wage discrimination, as long as it is successfully hidden from the employee (Ledbetter v. Goodyear). The court made it harder for victims of age discrimination to prove their case (Gross v. FBL Financial Services Inc.), provided new protections for defendants, usually corporations, from injured plaintiffs (Ashcroft v. Iqbal), and worst of all, created a constitutional right for private interests to funnel endless amounts of money into our democratic process creating greater possibilities for corruption, and greater corporate power over our government (Citizen’s United v. Federal Election Commission).
Most importantly, Senator Whitehouse addressed one of the most crucial and overlooked aspects of our government, one that must be safeguarded and preserved if our democracy is to remain vital: the Jury. The Jury Box remains the great equalizer and arm of democracy, even when the forces of society are in stalemate and the legislature is halted by lobbyists. Before a jury, powerful private interests are forced to stand toe to toe with ordinary Americans outside the shield of their monetary influence. Needless to say, they don’t like it. Apparently the Five Man-Wing of our Supreme Court doesn’t either.
To illustrate this point, Whitehouse mentioned the recent Baker v. Exxon Valdez case which dealt with the now infamous oil spill of 1989. The court rejected the Jury’s 5 billion dollar award (only a year of profit for the world’s most profitable corporation) in punitive damages reducing it by 90 percent, stating that anything more than the compensatory damage award would be too “unpredictable” for private companies. This decision has given safe cover for continued and intentional disregard for safety measures by oil companies like BP that leave us Tampa Bay and Florida residents to deal with the current ecological and economical disaster brewing in the Gulf of Mexico.
The Supreme Court’s disdain for the individual has created a political and legal climate in direct opposition to the aims of our government and our Constitution. In this environment court appointments are crucial in turning the tide back in favor of equal representation and true judicial restraint.
In light of Elena Kagan’s recent approval from the Senate Judicial Committee and a final floor vote slated on August 2nd, we at PERENICH The Law Firm are hopeful that General Kagan will exercise the necessary prudence and legal wisdom to advance a philosophy of judicial review, free from partisan influence reflecting the best institutional traditions of the Supreme Court.