Can Kagan Unify the Court?

Elena Kagan's nomination to Supreme Court represents a longer-term test of bipartisanship in the U.S.

Whatever gains the Democrats have made since the election of President Barack Obama, the Supreme Court remains divided and in conservative hands. For the last 10 years, the court has relied on split decisions to decide matters on voting rights, capital punishment, habeas corpus, gun rights, reproductive freedom, affirmative action, religious freedom, campaign finance legislation, civil liberties, and equal pay for equal work. Those who have dissented in these battles often do so vigorously, and the court has begun to represent the U.S. electorate: polarized and polarizing.

It is ironic indeed that the so-called departing lion of the progressive wing, Justice John Paul Stevens, would be considered in many ways a conservative during any other period in American history.

But of course, the U.S. is knee-deep in an era of right-wing originalists such as Justices Antonin Scalia and Clarence Thomas, and true-blue defenders of executive power such as Justice Samuel Alito and Chief Justice John Roberts. Many argue the current court is in one of the most politically conservative in U.S. history.

While the experience of John Paul Stevens suggests the left-right split may be a limited way to understand judicial philosophies and Supreme Court politics, it cannot be doubted that cases are increasingly decided on a five-four basis. Enter Elena Kagan.

Confirmed as the first female solicitor general of the U.S. in March 2009, Kagan saw her nomination win support from some of the Senate’s most conservative members, including Orrin Hatch, who stated, “You have to admit, Elena Kagan is a brilliant woman."

Before serving as solicitor general, the New York City native was the first female dean of Harvard Law School. She joins a new progressive and Ivy League-educated female wing of the court. So what does she bring to the table?

At 50 years old, Kagan is relatively young. This matters. Balancing the court requires someone who has the potential to serve for many years.

While never a judge, Kagan did clerk for Supreme Court Justice Thurgood Marshall and fought Big Tobacco for the Clinton administration. She also famously banned the military from using Harvard Law’s Office of Career Services, based on the military’s refusal to allow gay and lesbian troops to openly serve. She lost this battle in a rare near-unanimous Supreme Court decision in 2006. This issue is likely to be the main line of attack for Republican senators and those critical of her liberalism in pundit land.

Of course, in true Obama fashion, Kagan is also likely to face some criticism from traditional liberal democrats. Her support of executive power worries many who saw these excesses lead to violations of civil liberties and charges of constitutional over-reach during the Bush/Cheney years. During her solicitor-general confirmation hearing, she agreed with conservatives on the Bush/Cheney Terrorism template and that the government can indefinitely detain those captured on the battlefield.

One recent, middle-of-the-road narrative advanced by the New York Times is that Kagan might set the standard for yet another appeal for bi-partisanship in the U.S.

The re-emergence of the putative causality of Obama’s first year represents either political stubbornness on the part of the president or a pragmatic calculation about what it might take to win a few five-four decisions in the future. It is not yet clear.

In future legal battles involving equal rights and gay marriage, expanding Miranda rights, sentencing reform, and almost certainly health care, there can be no sure prediction about where the balance of power may lie. The apparent strategy is to nominate someone with the people skills, ability to listen, and political acumen that can forge precarious and often razor-thin majorities.

Kagan has this reputation. She has reached out to conservatives and held dinners to honour Supreme Court Justice Antonin Scalia. She is reported to have healed rifts in the high-stakes nastiness that is university politics and brought feuding faculty together with meals and joint appearances. Obama appears to be betting that Kagan will prove to be a deft hand at building consensus through persuasion and courting Justice Anthony Kennedy “…the vain and wavering swing-vote on the court.”

I hope he is right.