The coming of the Kagan court


Speaking at Harvard Law School last week, where she used to be dean, Supreme Court Justice Elena Kagan gleefully told an overflow crowd of students about the time she shot Bambi. Raised in New York City, she had never shot a gun. “This is not really what we did on the weekend,” she explained to laughter.

But during her confirmation process, after senators asked her about guns more than any other topic, including one senator from Idaho who expressed concern that she wouldn’t be able to understand how important guns were to his constituents, Kagan responded with an unusual offer. “I’ll make a commitment to you that if I’m lucky enough to be confirmed,” she promised the senator, “I will ask Justice Scalia, whom I knew to be a great and active hunter, to take me hunting.”

Kagan didn’t just go hunting with Scalia once. She became a hunter. She quipped to the students about shooting a doe after a recent unsuccessful elk-hunting trip in Wyoming — just because there was nothing bigger around to kill. The students went silent. When she was nominated, many Harvard students wanted Kagan to be the Great Liberal Hope who’d do combat with the court’s formidable conservatives. Now she was proclaiming, “I love Justice Scalia!”

The students may have missed what the story truly revealed: the savvy genius of Elena Kagan. With the Supreme Court returning to work this week after a long summer recess, Kagan begins only her fourth term. Yet she’s already laying the groundwork to be an influential player on the court for decades to come. She’s not the Aggressive Progressive, but she could well be the next Earl Warren — a politically astute relationship-builder.

And that’s good news — mostly — for liberals. Throughout American history, the Supreme Court has been a notably conservative institution. The most fruitful years for progressives were Warren’s as chief justice. Between 1953 and 1969, Warren was able to radically reshape constitutional law and, with it, America itself. Among the Warren court’s credits: ending Jim Crow; establishing one person, one vote; reducing police abuse though new protections for criminal defendants; expanding the freedom of speech; and guaranteeing sexual privacy.

Warren didn’t accomplish these by embarrassing his colleagues or by making sharper arguments on the merits. Warren was a master politician, one who’d sit with the other justices and bring them along slowly and steadily to his side. He sought to understand other justices’ concerns and address them. Unlike most of today’s justices, Warren was willing to work the halls to gain five votes. Or, in the case of desegregating the schools in Brown v. Board of Education, all nine.

Kagan, who wrote her Oxford thesis on the jurisprudence of the Warren court, shares many of his talents. Her rise was fueled by her relationships and networking. When Kagan was selected to be the solicitor general in 2009, it wasn’t because of her track record as a lawyer. She’d never argued a single case in court. Yet she had earned Obama’s trust as an adviser. And when she was selected to be dean of the Harvard Law School, it wasn’t because she was the most prolific and influential scholar. She was seen as someone who could bring together a faculty known for ideological and personal divisions that institutionally hobbled the law school, especially when it came to hiring.

As dean from 2003 to 2009, she calmed faculty tensions, launched an aggressive hiring spree that netted 32 new professors, and earned praise from both left and right.

Like Harvard, the Supreme Court has suffered from ideological division. Kagan is the justice most likely to reach across the aisle and become a true leader of the court. That’s what Mark Tushnet, Kagan’s former colleague at Harvard, argues in his new book, In the Balance: Law and Politics on the Roberts Court. Tushnet predicts that if the ideological mix on the court shifts just a little to the left–if, say, a Democratic president replaces one of the older conservatives — it will be Kagan, not Justices Sonia Sotomayor or Stephen Breyer, who will reshape it.

Kagan has earned respect by more than holding her own on the bench. Just ask superlawyer Paul Clement, a former solicitor general himself and perennial Republican Supreme Court short-lister. Last March, when the justices were considering the constitutionality of the Defense of Marriage Act, Clement stood at the lectern defending the law. Kagan, citing a House report from the 1990s, when DOMA was being considered, pointed out that one of the stated purposes of the law was “to express moral disapproval of homosexuality” — a no-no under current constitutional doctrine. Clement was flummoxed. “Does the House report say that?” he wondered aloud awkwardly, before admitting to Kagan, “If that’s enough to invalidate the statute, then you should invalidate the statute.” Three months after the closest the Supreme Court gets to a Perry Mason moment, that’s exactly what the court did.

More telling about Kagan’s potential leading role, though, is the hunting story. To be sure, her get-along approach comes at a cost. Two years ago, in the Obamacare case, Kagan surprisingly defected from the left to join part of Chief Justice John Roberts’ opinion permitting states to opt out of the law’s expansion of Medicaid. Fifteen states have done just that, leaving millions of people who would otherwise be insured to fend for themselves. And conservative scholars like Randy Barnett, the mastermind of the Obamacare challenge, have heralded the new limits on Congress’ power that Kagan endorsed as a resounding victory for states’ rights.

At the same time, Kagan’s decision bought her some credibility with the right-leaning justices for whom federalism is a particular bugaboo — and with whom she’ll be negotiating federalism issues of the future. This can be a risky play, as Breyer and Justices Ruth Bader Ginsburg discovered last June when the court’s conservatives struck down a key provision of the Voting Rights Act. A few years earlier, the liberals agreed to go along with a narrowly written opinion by the chief justice that, while upholding the law, pointed out a number of its constitutional weaknesses. In his more recent opinion, the chief reminded readers that Ginsburg and Breyer, now in dissent, agreed with him back then about the Voting Rights Act’s flaws.

Consider the lessons of hunting, though: To bag an elk, you don’t run into the forest shooting your gun off in every direction. You first study the animal, learning its habits and patterns. Then you venture quietly into its habitat, don camouflage, and wait patiently until the right time to shoot. Kagan understands that winning over other justices may involve similar stealth. And eventually, her Warren-esque approach may lead us to the Kagan court.

Adam Winkler is a constitutional law professor at UCLA and the author of “Gunfight: The Battle Over the Right to Bear Arms in America.”

© 2013, Slate

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