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The Kagan Court? Unpacking a Conservative Charge

The Kagan Court? Unpacking a Conservative Charge
Chief Justice John Roberts and Associate Justice Elena Kagan are seen during President Donald Trump's State of the Union address in the House Chamber on Tuesday, February 4, 2020. (Photo By Tom Williams/CQ Roll Call via AP Images)

Sunday, 23 August 2020 09:08 AM

A new narrative is gradually emerging around the balance of power on the Supreme Court. Chief Justice John Roberts may be the nominal boss and the swing vote; Justice Ruth Bader Ginsburg may be the unlikely octogenarian pop icon; and Justice Neil Gorsuch the newest conservative maverick. But according to this story, the real power on the court isn’t any of these headline-grabbing justices. It’s Justice Elena Kagan, the moderate former law school dean and solicitor general.

To conservatives, who are the ones pushing the narrative right now, Kagan is a silent strategic genius, tempting and manipulating pliant conservatives like Roberts and now Gorsuch to betray their Federalist Society origins.

After Gorsuch and Roberts voted in June to extend antidiscrimination protections to LGBTQ people, the Wall Street Journal editorialized, “Congratulations to Chief Justice Elena Kagan on her big win Monday at the Supreme Court on gay and transgender rights.” The Journal’s editorial board said that Kagan “might as well be” the chief justice and that her ideas were “all over” Gorsuch’s opinion.

Writing about a religious liberty opinion that Kagan joined in July, a conservative commentator wrote that she was “a master tactician.” Offering his “rueful praise,” he bluntly stated, “I wish she were on my side.”

A right-wing think tank also condemned “the Kagan court” after the court’s refusal to overturn precedent in 2020’s big abortion case.

On the surface, this analysis of Kagan’s rule not only sounds insulting to Roberts and Gorsuch, who doubtless believe that they formed their views entirely on their own. It also sounds paranoid: How could carefully vetted conservatives be deviating from conservative orthodoxy if not for the secret influence of a liberal? It’s also possible to hear some hint of sexism in the suggestion that Kagan has tempted the conservative men of the court to tread the unholy path of centrism.

On closer examination, however, the idea that this isn’t the Roberts court but the Kagan court is more subtle and more complicated. It turns out that the “Kagan court” trope can be traced back to progressives and liberals who predicted her influence years ago.

In 2013, Harvard law professor Mark Tushnet, a self-described leftist, suggested that “in a few years” people might talk about “a Kagan court.” (Credit goes to New Yorker writer Margaret Talbot for flagging that quotation in a 2019 profile of Kagan in which she, too — no conservative — praised Kagan’s growing influence.) Liberal law professor Adam Winkler also used the phrase “Kagan court” back in 2013.

It’s no accident that the idea of Kagan’s influence began among law professors. They form a constituency who knows (or thinks it knows) Kagan very well after her remarkably successful tenure as dean of the Harvard Law school. Tushnet was recruited to Harvard during her deanship. (Disclosure: so was I.) Under Kagan’s leadership, a fractious Harvard faculty divided among ideological factions broke the logjam and hired numerous professors from both the left and right of the political spectrum, not to mention the ever-popular mushy middle.

Law professors tend to imagine the Supreme Court as similar to a law school faculty: long-serving life-tenured colleagues who must work alongside each other but can, if they choose, retreat into their own little worlds of isolation. There is something to the comparison, to be sure. Many law professors clerked for the Supreme Court, and so we have a sense of how it works, albeit a sense inflected by the experience of being young and unimportant in a workplace dominated by the old and extremely important.

Given that Kagan was a master at using the tools of the deanship to get results at Harvard, it seems plausible on the surface to think that she would be able to use the tools of being a justice to build coalitions at the court.

I think the most likely explanation for the current conservative narrative is that it has migrated from an admiring liberal hope into a frustrated conservative complaint. And although that there can never be contemporaneous verification for a theory like this one, it was one that was predicted by liberal court watchers before Roberts and Gorsuch began to break ranks so promiscuously. That gives it some claim to validity as an after-the-fact explanation.

The trouble with the theory is that it is almost certainly overstated. Kagan is indeed a brilliant strategist. But it is an incredibly tricky business to move colleagues away from their ideological origins. It takes years, not months. Gorsuch just hasn’t been Kagan’s colleague for long enough to ascribe his recent votes to her influence. It’s much more likely that Gorsuch has his own reasons for adopting a jurisprudence of textualism so sincere that it brought him to a nominally liberal outcome in the LGBTQ case as well as the Creek Nation case.

As for Roberts, his preoccupation with making sure that the Supreme Court isn’t seen as ideological is a longstanding one. His deference to settled precedent is a much better explanation of his recent vote on abortion rights. And his frustration with Trump’s politicization of the judiciary is a much better explanation of his “liberal” votes on the census and Trump’s DACA rescission.

I would never underestimate Kagan’s small-group political skills, her charm, or her brilliance. But explaining justices’ motives in terms of the influence of other justices is always a doubtful business — whether it is being done in praise of the supposed Machiavelli or in denunciation.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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A new narrative is gradually emerging around the balance of power on the Supreme Court. Chief Justice John Roberts may be the nominal boss and the swing vote; Justice Ruth Bader Ginsburg may be the unlikely octogenarian pop icon; and Justice Neil Gorsuch the newest...
elena kagan, john roberts, conservatives, court, power
Sunday, 23 August 2020 09:08 AM
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