The newest justice

Now that Justice Elena Kagan has served for a year on the Supreme Court, there have been a few articles assessing her first year.  One theme that has emerged is a comparison between Justice Kagan and Chief Justice Roberts.  Both are the same age and were expected to make it to the Supreme Court.  The fact that they are ideological opposites is also a source of interest. How will these two jurists play off each other?  One thing seems certain: there will be many years to observe them.  Robert Barnes of the Washington Post reported that when the Chief Justice phoned to congratulate Kagan on her confirmation, the Chief noted they would likely be serving together for 25 years.  Kagan is reported to have responded, “Only 25?”[1]

 

The early verdict on Kagan shows her to be settling in nicely on the bench.  She seems to be an engaged questioner, and her opinions are concisely argued and have a lively tone.  She seems also to be successfully negotiating a very steep learning curve.  In a recent talk at the National Conference of Bankruptcy Judges, Kagan confessed that despite knowing little about bankruptcy, her first opinion was in a bankruptcy case.  Although she herself acknowledges that she has little expertise on the subject, she observed that, “Sometimes when you come at a subject you don’t know about, it’s most interesting.”[2]

 

Kagan’s comments and others’ observations of her seem to indicate that her transition to the bench has been a reasonably smooth one.  What has also been notable is her interaction with the other justices.  As Barnes reports: “She’s been skeet-shooting with Antonin Scalia, to the opera with Ginsburg, to dinner with Sonia Sotomayor,shared the stage at a Harvard Law School reunion with Anthony M. Kennedy and this summer showed up at a New York University law school conference in Buenos Aires with Clarence Thomas and his wife, Virginia.” [3]

 

Kagan’s outreach to her fellow justices puts one in mind of Justice Brennan, the charming member of the Court who knew how to turn social ties to political advantage.  One of the reasons that Pres. Obama gave for his nomination of Kagan was her ability to listen and to find grounds for agreement: …[S]he is respected and admired not just for her intellect and record of achievement, but also for her temperament — her openness to a broad array of viewpoints; her habit, to borrow a phrase from Justice Stevens, ‘of understanding before disagreeing’; her fair-mindedness and skill as a consensus-builder.”[4]  Could it be that the President was hoping that Kagan would be able to exert some influence on her colleagues, bringing the Court to a slightly more moderate, or even liberal, tack?

 

Such hopes would not be unusual.  For example, Jeffrey Toobin noted that Pres. Reagan hoped that Justice Scalia would be able to influence fellow members of the Court.  Unfortunately, this did not happen. [5]   It will be fascinating to see whether Justice Kagan is able to exert influence on other members of the Court in the future.

 

But it may well be that being on the Court is itself a moderating influence for at least some of its members.  In this regard, Linda Greenhouse’s commentary on Chief Justice Rehnquist’s decisions in federalism cases is instructive.  Greenhouse noted that although Rehnquist’s decisions in Lopez and Morrison reflected his concerns about the expansion of the federal government’s power, he stepped back in a later case, Nevada Department of Human Resources v. Hibbs, much to the surprise of Court watchers.  In Hibbs, the Chief Justice upheld Congress’ power to require state government to comply with the Family and Medical Care Leave Act.  How to account for the change?  Greenhouse writes,  “Much as he cared about projecting his judicial philosophy onto the Supreme Court, he also cared deeply about the court, and he had a finely tuned sense of limits.” [6]  Her argument is interesting in that it suggests that tenure on the Court may itself exercise a moderating influence on its members.  Whether you call it “evolving” or “ideological drift” it seems that, at least for some justices, judicial extremes may give way to the American political tradition of moving toward the middle.

 

This suggests that we will have much food for thought as we watch Chief Justice Roberts and Justice Kagan over what will likely be an extensive service on the Court.


[1] Robert Barnes, “Verdict on Kagan’s first year on Supreme Court,” Washington Post, 9/25/2011; accessed 9/28/2011.

[2] “Supreme Court Justice Elena Kagan speaks to bankruptcy judges in Tampa about her role on bench,” Washington Post, 10/15/2011; accessed 10/15/2011.

[3] Barnes, “Verdict”.

[4] Jesse Lee, “Nominating Kagan: ‘Her Passion for the Law is Anything But Academic’,” White House Blog, May 10, 2010; accessed 10/15/2011.

[5] Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court, (New York: Doubleday) 2007.

[6] Linda Greenhouse, “The Revolution Next Time?” http://opinionator.blogs.nytimes.com/2010/12/16/the-revolution-next-time/ , accessed 10/15/2011.

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