A Tale of Two Justices: Kagan

Politics in the Kagan confirmation hearings, like that of Sotomayor, were clearly on display.  I think E.J. Dionne had it right in Kagan’s case, “Something momentous has happened to our struggle over the Supreme Court’s role when Republicans largely give up talking about “judicial activism,” when liberals speak of the importance of democracy and deference to elected officials, and when judges are no longer seen as baseball umpires.” (link)

In Kagan’s hearings significant changes were revealed in how the parties approach justice.  It was the Democrats who were concerned about legislation from the bench, concerned as they were by the threat the Court poses to the Democratic political agenda, from regulating oil drilling, to delivering healthcare reform, to controlling the use of guns in this very violent country of ours.  The Republicans, on the other hand, while making gestures against judicial activism, were cheering it as it served their political ends, equating campaign contributions as speech, granting corporations the right of free speech, selecting a President.

For many, on the Republican extreme, indeed, the Constitution has come to be identified with their anti-government agenda, their agenda for keeping the Reagan revolution alive. At the Kagan confirmation hearings this political confrontation was perfectly clear.
I do worry about the balance and direction of the court, given my political commitments. I wish the balance of the court would change, just as those who are happy with the character of Roberts’ Court would like to see it sustained.  I observed the hearings with an understanding of the two sides, and I knew which side I was on, which team I was rooting for.  I think that the confirmation hearings were a great success demonstration of the political issues involved.  In this sense they were a great success.

But I have a special concern, a sociological one that is not strictly speaking political.  It concerns the issue of free speech and free public life more generally.  I fear that a political cultural ideal is being compromised, by one side, the other side of the great political debate.  I know that a free public life depends upon keeping intellectual traditions alive.  This I learned from my learned and principled conservative teacher Edward Shils when I sat in his seminar on traditions, which later became a highly influential book.   I also learned and know that markets and states, money and political power can both support and undermine such traditions.

I worked on this issue in my book On Cultural Freedom: The Exploration of Public Life in Poland and America.  My major finding: markets don’t guarantee cultural or political freedom, nor do states; both markets and states support and undermine cultural freedom, specifically free speech.  A key issue is whether individuals and groups can take part in public life.  Can they have a free discussion with their contemporaries and respond to their predecessors, and in the process support the development of cultural traditions?

When money is more readily available to one party, its opposition and its supporters, may not manage to be visible to or persuade the public.  Creating a system that advantages some, in this case the wealthy, does give them voice, but it also silences others, those who don’t have money.  Some seem to be more equal than others in this emerging configuration.  This needs to be critically examined, not because one or another party would be favored, but a key democratic ideal is at issue.

This is a principled issue that should move beyond politics.  The confirmation hearings of Elena Kagan showed that it hasn’t.