By Ezra Klein
Washington Post Staff Writer
Sunday, May 16, 2010; G01
Ever wonder why most of your credit card mail comes from South Dakota? The answer is the 1978 Supreme Court decision in Marquette Nat. Bank of Minneapolis v. First of Omaha Service Corp. At issue was one word in the 1863 National Bank Act that would decide how credit was regulated: Did "located" refer to the location of the bank, or the location of its customers?
The court went with the bank. That meant a bank could locate in the least-regulated state while selling to customers in the most-regulated ones. What happened next was predictable enough: Citibank offered to move to South Dakota, bringing much-needed jobs and tax revenue, if the state would let it write new credit card regulations. "Citibank actually drafted the legislation," recalls Bill Janklow, then-governor of South Dakota. "Literally, we introduced it, and it passed our legislature in one day."
If the Supreme Court had interpreted one word another way, credit card regulation in this country would be entirely different. It's a reminder of the power of the court, and potentially, of Elena Kagan.
Recent political tussles notwithstanding, the Supreme Court considers more than abortion, affirmative action and, occasionally, civil liberties. The court's stunning rejection of limits on corporate spending on political campaigns in the Citizens United case was a wakeup call to the broad authority the court could exercise if it so chose. And the conservative effort to persuade the court to rule that the individual mandate -- requiring people to buy and maintain health insurance -- is unconstitutional suggests that there's more where that came from.
I called Bruce Ackerman, a legal scholar at Yale, to ask what issues are likely to define the court in decades to come. "For sure," he said, "the status of undocumented aliens is going to be much more salient in American law. We're going to have 10 or 15 million people or more who'll find themselves in a position increasingly like black people before 1954. That will be a terribly serious issue, and the court will have to decide how to respond."
Ackerman also thought the sustainability of the entitlement state -- programs such Medicare and Social Security -- could end up before the Supremes. "What happens when promised benefits are cut back dramatically?" he said. "Will the court protect the weak, or not?"
Simon Lazarus, public-policy counsel at the National Senior Citizens Law Center, was more pessimistic. "We are in an era where the issue is whether the court will become a conscious agent overturning progressive laws, the way it was before the New Deal," he said.
Citizens United grabbed headlines for its audacity, but Lazarus says it's just one example of the Roberts Court legislating -- or, more to the point, de-legislating -- from the bench. "They've been in the legal underbrush," he said, "narrowly construing laws so they're not workable or eliminating remedies so they can't be enforced or stopping consumers and businesses from getting into court with claims in the first place."
Take Lilly Ledbetter's case. She was an employee at Goodyear Tire and Rubber who learned, after 19 years there, that she was paid far less than men in the same job. So she sued under the Equal Pay Act of 1963. Her case reached the Supreme Court, which ruled that she should have filed her suit within 180 days of the first paycheck showing a discrepancy. Ledbetter, of course, had not known there was a discrepancy -- nor do most people who suffer pay discrimination. The ruling didn't repeal the Equal Pay Act, but it made it virtually useless to the workers it was meant to protect.
So where does Kagan fit into all this? You'll have to ask her. Or, more to the point, the Senate will. And hope she'll answer.
Chief Justice John Roberts's famous "umpire speech" showed the political appeal of judge espousing a philosophy of not having a philosophy. But his activist streak on the bench has shown how little we actually learned from his confirmation process. In reality, the world is made of players, not umpires, and we deserve to know who we're drafting.
In past years, Kagan has argued that confirmation hearings should be a straightforward affair. "It is an embarrassment that senators do not insist that any nominee reveal what kind of justice she would make, by disclosing her views on important legal issues," Kagan wrote.
The White House has been walking that view back. "The passage of time and her perspective as a nominee [have] given her a new appreciation and respect for the difficulty of being a nominee, and the need to answer questions carefully," said Ron Klain, one of the administration officials charged with shepherding Kagan's nomination. Maybe that's what Obama meant when he said he wanted an "empathetic" nominee?
But we're talking about a lifetime appointment to a body with power over everything from credit card regulations to campaign-finance reform to immigration. Kagan might have a new appreciation for the difficulty of being a nominee, but she should retain her old respect for the Senate's right -- and our need -- to know the opinions of all nominees.