Elena Kagan Must Talk
Klein, Ezra, Newsweek
Byline: Ezra Klein
With great supremacy comes great responsibility.
Ever wonder why most of your credit card mail comes from South Dakota? The answer is a 1978 Supreme Court decision called Marquette National 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 ruled that it referred to the location of the bank. That meant a bank could locate in the lowest-regulation state while selling to customers in the highest-regulation state. 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," Bill Janklow, the South Dakota governor who cut the deal, told a PBS interviewer. "Literally, we introduced it, and it passed our legislature in one day.''
If the Supreme Court had interpreted one word differently, credit-card regulation in this country would be entirely different.
Recent political tussles notwithstanding, the Supreme Court does more than abortion, affirmative action, and, occasionally, civil liberties. The court's stunning rejection of limits on corporate spending in the Citizens United case was a wake-up call to the broad authority the court can exercise if it so chooses. And the conservative effort to persuade the court to rule that requiring individuals to buy and maintain health-insurance coverage is unconstitutional suggests that there's more opportunities for judicial activism where that came from.
So I called Bruce Ackerman, a legal scholar at Yale, to ask what issues politicians should be thinking about as they choose a justice who will serve for the next 20 years--not, as it sometimes seems, the last 20 years. "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 [million] 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 could end up before the Supremes. …