The case has not been filed with the clerk of the Supreme Court. No writ of certiorari has been granted, no amicus briefs filed. Stare decisis may apply, depending on the relevant precedents. There may even be some valuable obiter dicta — if only there were oral arguments, or even plaintiffs or defendants, to make use of it.
The case, in fact, doesn’t even exist.
And yet, in four days of hearings by the Senate Judiciary Committee on the nomination of Elena Kagan to the Supreme Court, it has repeatedly usurped the spotlight. And it captures in stark and concrete terms the ideological struggle that may well come to define the Supreme Court for the next half-century, and perhaps the entirety of Kagan’s term: Little Guy v. Big Guy.
There were, of course, flare-ups over the customary wedge issues: abortion, the Second Amendment, privacy. But the phraseology of Average-American-versus-Corporate-Elite colored the hearings to an unusual degree. Kagan introduced herself to the Senate, and to the country, as a lawyer who believes primarily in the equalizing force of the judicial system. In an exchange with Arizona Sen. Jon Kyl, she told the committee that one of the “glorious things” about courts is that they provide a “level playing field.”
“And even when that level paying field is not provided by other branches of government,” she added, “even when there’s some imbalance with respect to how parties come to Congress or the president or the statehouses, the obligation of courts is to provide that level playing field.”
In a confirmation process full of hedges and obfuscations, Kagan provided what may well have been her most succinct answer when asked directly about the case of Little Guy v. Big Guy. In the same exchange with Kyl, she was asked about a comment Chief Justice John Roberts made in his own confirmation hearings in 2005: “If the Constitution says that the little guy should win, then the little guy’s going to win in the court before me,” Roberts said at the time. “But if the Constitution says that the big guy should win, well then the big guy’s going to win, because my obligation is to the Constitution.”
Kyl asked Kagan if she agreed with this sentiment. And without regurgitating the question or referring vaguely to the basic principles of constitutional law — two cherished tactics for a nominee hoping to evade inquiries or run down the clock — Kagan answered, “I do, Senator Kyl.”
What’s notable about the exchange is not that Kagan answered in the affirmative — or even that she answered at all — but that Kyl held up Roberts as a paragon of judicial restraint. His imprint on the court in his five years as chief justice has been controversial, most notably in the case of Citizens United v. Federal Election Commission, which enshrined the rights of corporations to spend unlimited sums in political campaigns.
As the centerpiece of the Roberts term, the Citizens United ruling, which earned an unusual rebuke from President Obama in his State of the Union address in January, has loomed large over these hearings. The bitterly divided 5-4 decision upended several long-held Supreme Court precedents, which had the full weight of settled law, and considered questions even the plaintiffs had previously conceded. The ruling was a jolt to the judicial system, just as popular anger toward government and corporations has roiled the political system.
The origins of Little Guy v. Big Guy can undoubtedly be found in the Citizens United ruling. But its contours are much broader, and touch upon more than just corporate spending in politics. The relentless gushing of oozy crude into the fertile marshlands along the Louisiana coastline has left residents there feeling powerless to challenge corporate wrongdoers. They too are plaintiffs in the case of Little Guy v. Big Guy, and sympathetic onlookers from across the country have filed amicus briefs on their behalf, in the form of opinion polls and constituent complaints.
Sen. Russ Feingold of Wisconsin quizzed Kagan on what role the courts might play in sorting out the aftermath of the Gulf crisis. He asked her about a 2008 ruling by the Supreme Court that slashed punitive damages for victims of the 1989 Exxon Valdez oil spill in Prince William Sound, cutting them from $2.5 billion to $500 million. The decision could prove consequential if a similar fight plays out over damages from the Deepwater Horizon spill.
“It’s not hard to read this decision, especially in light of what’s happened in the Gulf, as the Supreme Court giving a free pass to reckless corporations,” Feingold told Kagan. He added: “One of the judiciary’s most important roles is to prevent powerful groups and corporations from running roughshod over the rights of individuals.”
Asked if she agreed with this description of the courts’ authority, Kagan would say only that “courts have an important role to play in protecting people under the law who are injured by corporate misconduct, or by any other.”
Later, Sen. Al Franken of Minnesota riffed on the same theme, by spotlighting the role of Republican-appointed justices in ruling for corporate interests. Borrowing the rhetoric of the Republicans, Franken said, “In these cases, the Supreme Court was legislating from the bench, which is being activist.”
For Democrats, the defendants in Little Guy v. Big Guy may have been Big Oil. For Republicans, the targets may have been Congress and President Obama. Perhaps neither had standing to pursue the case, and maybe the appropriate venue would be an election, rather than the Supreme Court. The principles at stake — whether courts have a role to play in punishing corporate excess, and whether the judiciary should concern itself with social and economic justice — are old ones, and the terms used to debate them have evolved along with the country.
But they are nonetheless likely to shape the Supreme Court, and Kagan’s term, for decades.
“We’re hearing terms about ‘the little guy’ and, of course, terms like ‘judicial activism,’” said Paul Collins, a professor of law at the University of North Texas who recently published a statistical analysis of confirmation hearings since the 1930s. “The language that the senators use to approach judicial philosophy has changed a lot over time.”
He added: “It’s a very big concept, of just, ‘How would you approach the Constitution?’”