Brandeis's Seat, Kagan's Responsibility

[Commentary] Elena Kagan has been nominated to fill the Supreme Court seat once held by Louis Brandeis. He was not only a great and restrained judge but the most prescient critic of the "curse of bigness" in a time of economic crisis. Judge Brandeis can teach us a great deal. For example, Democrats repeatedly insisted during the Kagan hearings that the current Supreme court has shown a pro-corporate bias — a charge supported by a recent study by the Constitutional Accountability Center, which found that in the term that just ended, the United States Chamber of Commerce won 13 out of the 16 cases in which it filed briefs, a success rate of 81 percent.

If Ms. Kagan is to change this orientation, she will have to resurrect Brandeis's concerns about the "curse of bigness" — in business and in government. With vision and clarity, Brandeis warned about how corporate money controlled by "our financial oligarchy" can threaten American democracy and how the reckless gambles that greedy megabanks take with "other people's money" can threaten the global economy.

Similarly, as Sen Al Franken (D-MN) suggested in the Kagan hearings, the greatest threats to free speech in the 21st century won't come only from oppressive governments trying to silence political dissidents. They will also come from the titans of digital communication.

At the moment, Comcast, Google and Facebook have more power over who can speak and be heard than any government or Supreme Court justice. To preserve free speech and privacy in the face of that power, Ms. Kagan will need to explore the ways that giant media corporations can threaten liberty, even if they are not formally restricted by the Constitution.
Ever since the rise of the conservative legal movement in the 1980s, liberals have yearned for a justice who can not only challenge Justice Antonin Scalia on his own terms, but also change the terms of debate. As her deft performance in the hearings showed, Elena Kagan has the potential to play that transformative role. To achieve it, however, she needs to develop a positive vision of progressive jurisprudence in an age of economic crisis, financial power and technological change. As a model for this vision, she need look no further than her greatest predecessor.

[Jeffrey Rosen is a law professor at George Washington University and the legal affairs editor of The New Republic]