Kagan and the Court
Andrea asks: During the 5/21/10 podcast, Elena Kagan was portrayed as a liberal with mediocre talent and a lack of passion for any particular agenda. My thought from this is that she would be replacing a Supreme Court Justice who is considered a “Liberal Lion” on the Court with a talent for debate and persuasion. If Kagan doesn’t have a liberal crusade (that we can tell), nor a powerful presence, won’t the liberal bloc of the Court be slightly less effective now when they vie for Justice Kennedy’s opinion?
What an excellent point. Richard and I were in agreement that Kagan had not made any great waves as an academic. No Kagan theory, no great debate over a Kagan argument, no books or articles of real note. For good or ill, that might not correlate at all with her performance as a Justice. The joke has always been that A students became professors, B students became Wall St. partners, and C students became federal judges. I won't testify -- at least while sober -- as to whether this bears out in my personal experience.
Kagan holds conventional liberal academic views (which would be on the far left of the normal American political mainstream), and keeps the liberal bloc on the Court intact (Ginsburg, Breyer, Sotomayor, Kagan). This makes more important her inter-personal/politician skills. All of the evidence is that Kagan is an unusual combination of smarts and charm. If she is ultimately persuasive, she could pull Justice Kennedy to her side. Justice Brennan, I would say, was not a top-level legal mind, but his big impact on the Court was due to his politician skills and personal charms in building majorities. You can always hire the best and brightest to help with the research and drafting; what is more important is obeying "the rule of five," as Brennan called it.
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May '10
Re: Kagan and the Court
The really frightening part of this is the Kennedy factor, given his fondness for seeing his name in lights, headlines, and laudatory editorials- as described by Jan Crawford in her very interesting book (Supreme Conflict).
May '10
Re: Kagan and the Court
The Brennan comparison is sound, but what about Elena Kagan as Hugo Black? I remember the stories of Black and John Harlan going after each other in conference and leaving literally arm-in-arm. Which Justice may play Harlan to Kagan's Black? I think we can safely take Justices Scalia, Thomas and Alito out of play, and I seriously doubt that Chief Justice Roberts will succumb to a charm offensive. That leaves us with Justice Kennedy, and I share Duane's concern about Kennedy's fickleness.
You gotta love Supreme Court prognostication. It's almost as much fun as trying to guess which schools the Big Ten will add.
May '10
Re: Kagan and the Court
Professor Yoo - The Court's liberal bloc (Breyer, Ginsberg, Kagan, and Sotomayor) and conservative bloc (Roberts, Alito, Scalia, and Thomas) are not going to change their decisions based on backroom schmoozing. That leaves all the discussion about political acumen aimed at convincing one man: Justice Kennedy.
Is his really so malleable in his decisions? I know he's the hardest to predict and the most "moderate" but does that necessarily mean he decides his vote based on Courtroom politics? Or is his philosophy just less dogmatic?
Finally, isn't all the discussion about political skill moot when he is inevitably replaced by either a steadfast conservative or a steadfast liberal? Since presidents are now in the habit of nominating justices who will serve for twenty or thirty years, it means Justice Kagan's lone strength will, at most, be applicable for a few years and completely moot for the remaining few decades of her tenure.
May '10
Re: Kagan and the Court
Pat: Professor Yoo - The Court's liberal bloc (Breyer, Ginsberg, Kagan, and Sotomayor) and conservative bloc (Roberts, Alito, Scalia, and Thomas) are not going to change their decisions based on backroom schmoozing. That leaves all the discussion about political acumen aimed at convincing one man: Justice Kennedy.
Is his really so malleable in his decisions? I know he's the hardest to predict and the most "moderate" but does that necessarily mean he decides his vote based on Courtroom politics? Or is his philosophy just less dogmatic?
Finally, isn't all the discussion about political skill moot when he is inevitably replaced by either a steadfast conservative or a steadfast liberal? Since presidents are now in the habit of nominating justices who will serve for twenty or thirty years, it means Justice Kagan's lone strength will, at most, be applicable for a few years and completely moot for the remaining few decades of her tenure. · Jun 10 at 8:09pm
That was my other question, but I thought I might be pushing my luck if I asked two. Thanks for asking it, Pat!! :-)
May '10
Re: Kagan and the Court
Thank you so much for taking the time to respond to yet another one of my questions!! I guess someone with effective political skills can still be compelling even if her objective is not passionately inspired. I knew it wouldn't be that simple, darn it!
Re: Kagan and the Court
Andrea Ryan: This is a question for Professors Yoo and Epstein…During the 5/21/10 podcast, Elena Kagan was portrayed as a liberal with mediocre talent and a lack of passion for any particular agenda.
My thought from this is that she would be replacing a Supreme Court Justice who is considered a “Liberal Lion” on the Court with a talent for debate and persuasion. If Kagan doesn’t have a liberal crusade (that we can tell), nor a powerful presence, won’t the liberal bloc of the Court be slightly less effective now when they vie for Justice Kennedy’s opinion?
Andrea, this is surely likely to be true in the short run. Stevens himself took 20 years before he found the liberal voice for which he is now so closely identified with. Kagan will have a hard reaching that level, but with time who can tell. It would be ironic if she were to move right, but the social pressures to hem in government are growing and she has excellent political antennae.
May '10
Re: Kagan and the Court
Richard Epstein: It would be ironic if she were to move right, but the social pressures to hem in government are growing and she has excellent political antennae. · Jun 11 at 5:33am
Very interesting. I've heard of Justices joining the Supreme Court and moving left. Has it happened where a Justice was appointed by a liberal president and over time moves right? Since Justice Kennedy enjoys the spotlight, I imagine he would also value being on the favorable side of a popular political tide toward the right, as well?? Possibly Kagan for politically astute reasons and Kennedy for more shallow Clinton-esque ones. Or, am I being too simple?
Re: Kagan and the Court
Richard Epstein: It would be ironic if she were to move right, but the social pressures to hem in government are growing and she has excellent political antennae.
Andrea Ryan: Very interesting. I've heard of Justices joining the Supreme Court and moving left. Has it happened where a Justice was appointed by a liberal president and over time moves right? Since Justice Kennedy enjoys the spotlight, I imagine he would also value being on the favorable side of a popular political tide toward the right, as well?? Possibly Kagan for politically astute reasons and Kennedy for more shallow Clinton-esque ones. Or, am I being too simple?
Another factor: public perceptions of what counts on the Court as right-of-center might (continue to) shift to the left while the Justices themselves don't change much -- creating the impression that swing moderates are sliding right. And a fair number of issues -- especially as Bush-era powers persist under Obama -- are increasingly hard to cubbyhole as right or left.
Re: Kagan and the Court
The pressures on Justices to "grow in office" seem to be in one direction only, at least during the modern Court. The only Justice who moved right was Byron White, a Kennedy appointee, though it could be said that the Court, not he, did all the moving. JFK was not extremely liberal when with his domestic policies. Contrast that with the litany of Republican appointed judges who moved to the left -- Blackmun, Stevens, O'Connor, Kennedy, and Souter.
The reason was suggested by a judge I clerked for, who called this "The Greenhouse Effect," after the NY Times's reporter who covered the Court. Those who cover and comment on the Court are generally liberal, and will praise Justices when their decisions move to the left, but not those who turn to the right. Academics will write articles and books praising leftward decisions and attacking the conservatives. Kennedy seems particularly prone to this effect; he is nowhere near the conservative that his supporters claimed he would be at the time of his appointment.
This leaves open the question why someone like Kennedy or Souter would even care what the press said. They have their jobs for life.
May '10
Re: Kagan and the Court
It's appalling that someone appointed to the Supreme Court could have their ideology swayed purely by vanity. That is not sad. It's awful.
May '10
Re: Kagan and the Court
I am so honored that I was able to ask a question and have two such revered legal experts answer so graciously and thoughtfully. I am very grateful. Thank you.