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Her Honor

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Kagan on the first day of her confirmation hearings in June 2010.  

Back when she was the dean of Harvard Law School, Kagan evinced the same concern for civil discourse across ideological divisions. When she took over as the first woman dean there in 2003, she hired three conservative legal thinkers, including Goldsmith—who came from the Bush administration’s controversial Office of Legal Counsel—as well as Adrian Vermeule, who formerly taught at the University of Chicago Law School, and John Manning, who clerked for Scalia. She went out of her way to welcome conservative heroes (like Scalia) and conservative student groups to campus. In February 2005, the student branch of the Federalist Society held its national jamboree at Harvard. As legal legend Charles Fried described it last year in The New Republic, “Kagan rose to speak the host institutions’ words of greeting to the thousand or so Federalists assembled from every corner of the country. She was greeted by a long and raucous ovation. With a broad grin and her unmistakable Upper West Side twang, the former ­Clinton White House official responded, ‘You are not my people.’ This brought the dark-suited crowd of Federalist students to their feet in a roar of affectionate approval.”

Kagan expanded Harvard’s institutional voice, even when it meant muting her own. In some ways, she’s done precisely the same thing at the Court. Clement points to another subtle aspect of her 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.”

She is deciding her cases one at a time, without hints or promises about where she may be moved down the road.

At one level Kagan keeps demonstrating that she can subordinate her name and even her voice to the institution as a whole. But in a deeper way, in declining to write for herself alone, she is also refusing to highlight areas in which she’s open for doctrinal business. 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.

It’s an impossibly fine line Supreme Court justices are expected to walk: They’re supposed to interact with the public, yet do nothing to show that they have prejudged a dispute; to live out in the sunlight, but convey the impression that nothing matters to them but their holy connection to the constitutional text; to think and write deeply about important legal questions, but to approach each case with the innocence of a newborn kitten.

The health-care case has put the high court in the national crosshairs. Just as the country is locked in partisan indecision, the high court is being attacked from all sides as a collection of party loyalists in black rayon. Every single one of the major Republican candidates for the presidency has put forth a plan to curb the Court’s power, precisely because some of the justices have—in speeches, books, and partisan political activities—tended to signal that they are political actors. Calls that three or more justices should step down from the health-care case represent an effort to reduce the justices to the sum of their political actions. It solves the “problem” of partisans at the Court at the expense of the integrity of the Court as a whole. Like the confirmation process itself, attacks on cartoon versions of villainous justices are mostly just theater—denying the reality of a judge’s everyday life and work on the bench.


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