WORLD VIEW:Supreme court nominee Elena Kagan gave little away at her confirmation hearings, writes PATRICK SMYTH
THE FARMER was simply growing wheat to feed his animals. He had no intention of selling it on the market. But the authorities decided to fine him because he’d exceeded his quota. And the court upheld their decision.
An everyday story of the Common Agricultural Policy (Cap) at work? Well, not exactly.
Roscoe Filburn was an Ohio farmer, the date was 1942 and the court, the US supreme court with a ruling (Wickard v Filburn) that upheld the right of Washington to police its own version of the Cap. And it is a case that still resonates in both the current ratification process for Obama’s nominee for the supreme court, Elena Kagan, and in the legal challenges to his healthcare Bill.
Justice Robert Jackson maintained that Filburn’s threshed wheat could be subject to fine because its very existence had a “substantial economic effect” on the wheat market (he speculated that had Filburn left the wheat unthreshed he might have taken a different view). But that brought the fine within the ambit of the constitutional protection in the “Commerce Clause” of the federal government’s power to regulate commerce “among the several states”.
Wickard would become one of the key precedents legitimising president Franklin Roosevelt’s radical broadening of the scope of federal authority in the 1930s, involvement in areas well beyond agriculture and trade, such as social and labour rights.
That expansion of Washington’s role has direct parallels with the evolution of the European Economic Community (EEC) into the EU and its expanding “legal competences”. In the end a purely economic association of states must inevitably morph into a more social and political union, if only to create a level playing field for business. And that similar tension between states’ rights and the centre remains a leitmotif of the politics of both entities, even if, proportionately, the US federal budget is 27 times that of Brussels.
It was a tension that underlay the Kagan Senate confirmation hearings over the last few weeks and provided the justification for the six Republicans who voted against her at the judiciary committee this week – she won by 13 to 6 and should be confirmed by the full Senate during the first week of August.
(Among other more fanciful reasons for opposing her is the suggestion championed by the conservative Washington Times that Kagan wants to introduce sharia law to the US – the paper even pictured her in a turban).
Kagan, Obama’s solicitor general and former dean of Harvard law school, played her cards close to her chest on red-button issues like abortion and gun control. No less, on the commerce clause and the possibility of revisiting Wickard, a cause most dear to Republicans who insist that alienation of the voters is attributable directly to the growth of federal power. A poll this week showed only 23 per cent of Americans believe their government rules with “the consent of the governed” . There is, in truth however, little evidence that voters are any less alienated from state houses than from Washington.
Tom Coburn, a Republican from Oklahoma, made an oblique attempt to prise a reply from Kagan on the principles involved by asking whether the government had the right to micromanage Americans’ diets, but he was deftly batted aside.
“If I wanted to sponsor a Bill,” Coburn said, “and it said ‘Americans, you have to eat three vegetables and three fruits every day’, and I got it through Congress and that’s now the law of the land . . . does that violate the commerce clause?”
“Sounds like a dumb law,” Kagan replied. “But I think that the question of whether it’s a dumb law is different from the question of whether it’s constitutional. And I think that courts would be wrong to strike down laws they think are senseless just because they’re senseless.”
No less, she might have added futilely, than Congress being wrong to strike down justices that they think are liberal just because they are liberal. The hearings are a trawl for ideological incorrectness. Since the 1987 failed nomination of conservative jurist Robert Bork, the hearings have become a ritual dance casting very little light as nominees play, what senators have complained is, “hide the ball” to avoid being pinned down on their judicial philosophy.
Coburn, in a subsequent article, acknowledged the humour of her riposte but complained that, “Kagan and everyone else knew I was asking a proxy question about the new health law . . . and the founders’ intent regarding the commerce clause. What is less humorous is the fact that as a supreme court justice, she would signal that Congress does in fact have the right to tell people what to eat and, by implication, whether to buy health insurance,” he continued.
“With Kagan on the court, Congress and the executive branch may succeed at sweeping away whatever limitations remain on its power to micromanage the decisions of states and individuals.”
Such extravagant generalisations make a change from claims that liberals are over-enthusiastic judicial activists. Here Kagan is accused of handing power to politicians. In truth, she, when nominated, will join the court’s liberal minority which unsuccessfully resisted the landmark denial of states’ rights in 2000, the award of the presidential election to George W Bush. Wickard with bells on, Senator!