Justice Elena Kagan

The latest issue of New York magazine contains a very interesting profile of the U.S. Supreme Court’s newest member, Justice Elena Kagan, penned by Dahlia Lithwick. Here’s the bottom-line summary of the piece (via Ezra Klein):

“While Kagan is assuredly a liberal, and likely also a fan of the health-reform law, a close read of her tenure at the Supreme Court suggests that she is in fact the opposite of a progressive zealot. By the end of Kagan’s first term, conservatives like former Bush solicitor general Paul Clement (who will likely argue against the health-care law this coming spring) and Chief Justice John Roberts were giving Kagan high marks as a new justice precisely because she wasn’t a frothing ideologue. The pre-confirmation caricatures of her as a self-serving careerist and party hack are not borne out by her conduct at oral argument, her writing, and her interactions with her colleagues. In fact, if her first term and a half is any indication, she may well madden as many staunch liberals as conservatives in the coming years.”

That’s just the overview. Let’s delve into the details a bit more….

Lithwick begins by discussing the controversies brewing over calls for various justices to recuse themselves in Florida v. Department of Health and Human Services — the constitutional challenge to the Patient Protection and Affordable Care Act, aka Obamacare. Liberals want Justice Clarence Thomas to step aside, because of his wife’s Tea Party activism, and conservatives want Justice Kagan to bow out, because of her service as solicitor general during and after the legislation’s passage (and because of a few stray emails in which she noted the law’s passage with apparent approval).

Justice Clarence Thomas

It seems to me that neither Justice Kagan nor Justice Thomas should recuse. The connections in either case are not substantial and direct enough to make an observer — a disinterested observer, not a partisan one — reasonably question either jurist’s impartiality. Justice Kagan will probably vote to uphold the individual mandate of the PPACA and Justice Thomas will probably vote to strike it down, but it won’t be due to her random emails or his wife’s political activities. (Justice Thomas’s views on the Commerce Clause are clear and longstanding — see, e.g., his Lopez concurrence). And given the small composition and unique nature of the Supreme Court, recusal is a much bigger deal at SCOTUS. It’s not like a lower federal court, where it’s quite easy for one judge to fill in for another when there’s even a minor potential conflict.

Back to Lithwick’s piece. She notes that “[t]he Supreme Court is currently experiencing what is known as an extremely ‘hot bench,’” which is “a polite way of saying the justices ask so many questions at the one-hour session allocated to each case that counsel can’t get a word in”:

In her first hour of oral argument at the Court in 2009, Justice Sonia Sotomayor asked 36 questions, and studies by Timothy Johnson at the University of Minnesota suggest that while each justice over the past decade has asked an average of about fourteen questions per argument, in her first term Sotomayor asked an average of sixteen. At one argument last year, when Sotomayor cut off Justice Ruth Bader Ginsburg with a question of her own, Roberts broke in to tell the baffled oral advocate, “I’m sorry. Could you answer Justice Ginsburg’s question first?” In another case, Roberts stopped Sotomayor as she interrupted Justice Anthony Kennedy and told her to let him finish his question….

As one Court observer put it to me this spring after oral argument: “Sotomayor talks. Kagan listens.”

Justice Sonia Sotomayor

The subtext here: the Wise Latina is a Rude Latina. Lady Soto, in her pushiness, is being contrasted with the more well-mannered Lady Kaga, whose questions Lithwick describes as “incisive and quite brief.”

It’s a subtext that arguably runs throughout the entire piece, which Jaime Fuller of the American Prospect accurately describes as painting a “multi-dimensional and favorable picture of the new justice.” The praise for Justice Kagan — her politeness at oral argument, her moderation in voting and writing, and her overall thoughtfulness as a jurist — can’t help cause a reader to wonder: Could the same be said of Justice Sotomayor? The two justices are almost like the Goofus and Gallant of President Obama’s SCOTUS appointees.

Justice Kagan, like Dean Kagan back at Harvard Law School, is certainly becoming Miss Popularity at One First Street:

Kagan is a classic extrovert. Her critics, including disappointed liberals who wanted a Thurgood Marshall 2.0 at the Court, have characterized her as a glad-hander and a shmoozer. And she did spend her first term making friends with her new colleagues. While avoiding the television cameras and reporters, Kagan logged time at the shooting range with Scalia and hit the D.C. opera scene with Ginsburg. She is also responsible (and fêted by the Chief Justice) for bringing the first frozen-yogurt machine to the cafeteria of the high court, mere decades after its introduction in the rest of the Western world.

Never underestimate the power of fro yo. And powerful writing:

Last term, Kagan nudged her way into [Justice Antonin Scalia's] literary stratosphere. Like Scalia and Roberts, she uses short, crisp sentences. Jargon at a minimum. Memorable metaphors that make complicated ideas accessible. It’s as if half of her is writing to influence her colleagues while the rest of her is writing to sway everyone else. Lisa Blatt, who heads up Arnold & Porter’s appellate and Supreme Court practice, points out that Kagan has repeatedly used the words imagine and you and writes directly to the reader. Blatt notes that this is a technique that instantly “draws the audience into the process of decision-making.”

And doesn’t everyone like to feel like a judge? Using second-person address could be dismissed as a bit hokey or gimmicky, but it’s undoubtedly effective.

At the same time, as Lithwick notes, Justice Kagan has also spoken volumes through strategic decisions not to write:

[Former Solicitor General Paul] Clement points to another subtle aspect of [Justice Kagan's] approach this term: Justices always have the option to write separate opinions, dissents, or concurrences (separate opinions that agree with the majority on the outcome but not the rationale) for themselves alone. And the temptation to write separately is enormous. Lone opinions are a way for a justice to lay philosophical markers, to signal future battles, to send up a flare to like-minded justices, lawyers, and academics, that he or she is receptive to particular arguments in the future. Chief Justice William Rehnquist was famous for his lone dissents. As is Thomas today. But Clement notes that in her first term, Kagan only wrote majority opinions and dissents when they were assigned to her. In other words, she consciously avoided the temptation to write for herself. In Clement’s view, this “suggests a tendency to vote and decide, and write if assigned, but not to articulate her own nuanced view in every case.”

Interesting. Is Clement buttering up Justice Kagan because he senses that she is persuadable? Lithwick cites evidence that EK won’t always vote with the liberal wing:

She is deciding her cases one at a time, without hints or promises about where she may be moved down the road. Nowhere was this more apparent than last month, when Kagan voted with the Court’s conservative bloc in a case concerning a grandmother convicted of shaking a baby to death. The appeals court freed the grandmother, finding the jury’s conclusion irrational. Kagan broke with the left wing of the Court and silently joined the conservative majority in an unsigned opinion reversing the decision.

Kagan may prove more conservative than her predecessor Stevens, or this can be an outlier. Either way, the justice isn’t talking. That’s a rather conservative quality, and it’s generally the Court’s conservatives who speak reverently of judicial restraint and humility. While some may find her close-to-the-vest behavior a strategy in itself, it might instead be proof that Kagan is a purist. One with a real commitment to the fundamental purpose of the Court: to weigh each case independently and impartially.

Lithwick acknowledges that this could be an aberration; only time will tell how non-ideological Justice Kagan ends up being. But there are other signs that Kagan is one of the more open-minded, or at least less dogmatic, members of the Court. Take a look at her law clerks — past, present, and future — and where they came from:

October Term 2010
1. Andrew Crespo (Harvard 2008 / Reinhardt / S. Breyer)
2. Allon Kedem (Yale 2005 / Kravitz (D. Conn.) / Leval / A. Kennedy)
3. Elizabeth B. Prelogar (née Elizabeth Barchas)
(Harvard 2008 / Garland / R. Ginsburg)
4. Trisha Anderson (Harvard / Sutton)

October Term 2011
1. Jeff Johnson (Harvard 2010 / Wilkinson)
2. Rakesh Kilaru (Stanford 2010 / Wilkinson)
3. Erica Ross (Stanford 2009 / Tatel / Bristow Fellow)
4. Jonathan Schneller (Harvard 2010 / Reinhardt)

October Term 2012
1. Samantha Bateman (Stanford 2010 / Brinkema / Garland)
2. Brad Garcia (Harvard 2011 / Griffith)
3. Zach Schauf (Harvard 2011 / Garland)
4. David Zimmer (Harvard 2010 / W. Fletcher)

Focus on the feeder judges. Let’s zero in on the circuit judges (setting aside the district judges and also the justices for whom Lady Kaga’s Little Monsters previously clerked).

Of the twelve clerks, eight came from feeders appointed by a Democratic president and four came from feeders appointed by a Republican president. This is probably the most ideologically diverse set of feeder judges to any justice currently sitting on the Court. Tilting two-thirds to the left wouldn’t pass for “balance” in many quarters, but I can think of no other Supreme Court justice who draws clerks from liberal and conservative judges so evenly.

Yes, Justice Kagan hires Tatel Tots, and she hires Ninth Circuit clerks (apparently unlike Justice Alito) — including clerks from such liberal lions as Stephen Reinhardt and Willy Fletcher. But she also hires from conservative superstars like Jeff Sutton and J. Harvie Wilkinson (for whom half of her current clerks once worked).

Okay; we’ve gone on for long enough. If you haven’t done so already, you should check out Lithwick’s thoughtful, thorough, and very well-written article, which is definitely worth your time.

Her Honor [New York Magazine]
Ezra Klein’s Wonkbook: Kagan is hardly a stalwart lefty [Washington Post]
Monday round-up [SCOTUSblog]


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