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Her Honor


Since joining the Court, Kagan has been at pains to avoid the appearance of conflict and driving ideology. In fact she’s avoided personal conflict altogether, limiting her public appearances, giving no inflammatory speeches, praising her colleagues, and setting no fires. She has resisted classification in almost every way, and the caricatures of her as an unhinged lefty bomb thrower ignore over a year’s conduct as a justice.

Most Court experts believe the health-care case will be decided by a 6-3 or a 7-2 margin (upholding the act, if you want to call your bookie now), and that’s because for every Bush v. Gore, there are hundreds of cases that are not decided along party lines, and also because party lines don’t always begin and end at wanting to embarrass the president. Kagan may have been happy at the passage of health-care reform, just as each of the other eight justices had his or her opinion. If their opinions alone carry the day, there’s more to worry about here than just the fate of the Constitution’s interstate-commerce clause.

Kagan has leaned both left and right, and she is also quite possibly the last living acolyte in the Church of the Supreme Court’s Specialness. For her, the work of the Court isn’t a matter of crushing the opposition; it’s a matter of finessing it. Maybe she’s still relatively new. Maybe it’s that she hasn’t been entombed in a federal courthouse for decades. Or maybe law and politics really are essentially different enterprises. Kagan will not recuse herself from the health-care case, and that is as it should be. She will decide it as a member of a larger body, triangulating against the words of the Constitution and the constraints of prior precedent. The very existence of the Court depends on that.


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