Klein: Why Elena Kagan Must Talk

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. "What happens when promised benefits are cut back dramatically?" he asked. "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 believes it's only one of many examples of the Roberts Court legislating—or, more to the point, delegislating—from the bench. "They've been in the legal underbrush, 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," he said.

So where does Elena Kagan fit into all this? You'll have to ask her. Or, more to the point, the Senate will have to ask her. And hope she'll answer. John Roberts's famous "umpire speech" showed the appeal of a nonphilosophical judicial philosophy, but his unexpected 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 whom 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. But 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 "empathic" nominee?

But we're talking about a lifetime appointment to a body with vast power and almost unlimited jurisdiction. 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.