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Her Honor

Then-University of Chicago law professor Kagan with colleague Daniel Shaviro in 1992.  

To some, her affability suggests that Kagan is an operator, dispensing goodwill everywhere she visits, but never quite asserting her own belief system. One of her most vocal critics on the left, Salon’s legal columnist, Glenn Greenwald, blasted Kagan in the spring of 2010 for a failure to speak out about Bush-era lawlessness. He went on to argue that “even on the issues where she has been impressive—such as her refusal to allow military recruiters to recruit at Harvard Law School due to their anti-gay discrimination—her record is ultimately rather muddled … she quickly reversed that policy and allowed military recruiters onto campus after the Federal Government threatened to withhold several hundred million dollars in funds to Harvard.”

It’s easy to assume that Kagan’s efforts to please everyone are a sign that she is motivated by a highly attuned sense of political survival. But as Tom Goldstein—who argues frequently before the Court and is a co-­founder of the website scotusblog—points out, “You don’t snooker Supreme Court justices. We have this image of Justice Brennan getting votes by being friendly; by wrapping his arm around your shoulders,” he says. “But these are the big leagues, and to have influence, you have to be substantive. You have to be that good.”

What Kagan did that most impressed her early critics last year had nothing to do with shooting skeet and everything to do with her writing. For years Scalia has been acknowledged as the Court’s greatest wordsmith. In a 1996 dissent, he wrote, “The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize.” Last term, Kagan nudged her way into his 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.”

But it also signals something about the way Kagan thinks. She’s interested in working through the argument—both sides fully credited—and appealing to readers to weigh in, instead of beating them down with a doctrinal worldview (Thomas, by contrast, devoted an entire dissent last year to a twenty-page meditation on the joys of strict Colonial parenting). Kagan invites readers to substitute their judgment for her own. “Here are the facts; what would you do?” is not merely the sign of a mind devoted to the process of legal logic, it’s an act of making the lone justice less important than the community. At oral argument in a case this past October about a death-row inmate who missed a critical filing deadline because a letter detailing that deadline was sent to his lawyers (who’d by that time left the firm), Kagan deployed the same technique. As she pressed Alabama’s solicitor general on why nobody in the court clerk’s office saw fit to tell the inmate the letter had been returned, she asked, “So you send off this letter, and you get it back from the principal attorneys, and you ask yourself: ‘Huh, should I do anything now?’ What would you say?”

To which the solicitor general was forced to concede in response, “Your honor, I suspect that in those circumstances I might well personally do something else.” Jeffrey Fisher, who co-directs the Supreme Court clinic at Stanford Law School, characterizes Kagan as “more than just the best doctrine cruncher. She has something that comes from a ­higher—almost subconscious—level: an insight into common sense.”

So many of the greatest judicial stylists have used rhetorical brickbats to mark their territory, to brutalize opponents and to intimate that to disagree is to be doltish. Scalia has been known to make this point explicitly, such as in a 1989 abortion dissent in which he wrote that an opinion by Justice Sandra Day O’Connor “cannot be taken seriously.” Stevens was more than willing to express his outrage at the majority in his dissent in the big campaign-finance case, Citizens United. One can practically read the sneer marks in his observation “While American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics.”

But Kagan seems to have brought a Bic pen to a quill fight, with a mix of her second-person narrative and appeals to collective wisdom. (When she’s come off as pointed in her writing, she’s expressed regret. After penning a dissent in an Arizona campaign-financing case, Kagan accused the majority of looking for “smoking guns,” but in the end, “the only smoke here is the majority’s, and it is the kind that goes with mirrors.” She later admitted to a moderator at an event, “You know, listening to that, I’m not sure I would have written it that way again.”)