Wednesday, May 12, 2010

In Which I Tell You All What To Think About Elena Kagan

So Obama has picked another Supreme Court Justice. Some facts on Kagan, if you haven't read the profiles. Kagan was Dean of Harvard Law and, for the past year, the nation's Solicitor General (our chief lawyer, the one who argues the government's really big cases before the Supreme Court). Reportedly she was a terrific Dean. Contrary, however, to what that post might lead you to believe, she wasn't a huge heavy hitter as a scholar. She's written only six articles (and no books); one of these is cited all the time and very well-regarded, while a couple of the others are pretty well-cited but not as big a deal in their field. None of them really speak that conclusively to what Kagan thinks about anything. They're descriptive, not normative, pieces. As Solicitor General, she's lost her one really huge case (Citizens United, the campaign finance case), but she couldn't really help that. Before the Court she's more than held her own in colloquy with the Justices and has generally confirmed her reputation as a brilliant and amiable lawyer. Basically she's (a) held two, if not the two, of the most prestigious jobs in law, while (b) not necessarily doing a whole lot to get those jobs or revealing anything about what she thinks about anything while doing those jobs, and (c), despite her thin record is undoubtedly one of the sharpest minds in the business.

So as to what I think of the appointment. Obama's idea in appointing Kagan, from what we can gather from the reporting on the pick, is as follows. Obama seems to genuinely fear that the Court may invalidate some of his policies, including healthcare reform, even though I really can't fathom Justice Kennedy (the Court's Hamletesque swing voter) or even Chief Justice Roberts going that far. Obama can fathom it though, apparently, and since he hasn't been given an opportunity to replace any of the Court's conservative members, all Obama can do about it is appoint people person types who might succeed in talking the swing voter(s) to vote his way. And since Kagan is such a charming woman, someone who managed to pacify a Harvard faculty that, at the time of her arrival, was reportedly something of a "snake pit," he picked her. That's the idea. Now in the first place, to me this seems like a preventive measure against a disaster that's never going to happen anyway. In the second, there's no evidence to suggest that surrounding Justice Kennedy with chummy liberal characters affects how he votes in the slightest. Outgoing Justice Stevens was a chummy guy, Justice Breyer is a chummy guy, Justice Ginsburg is so warm and chummy that she goes to the opera with Scalia and gives his grandchildren Chanukah gifts. (Seriously.) Nevertheless, Kennedy continues to be about the same judge he was prior to the arrival of these chummy types on the scene, about 16 years ago; if anything he's getting a little more conservative. I just find it a little absurd to think that, in a 9-member Court, in a setting where Justices are probably at least as influenced by the cadre of brilliant Harvard/Yale grads they hire to write their opinions for them as they are by their colleagues, one single person, and the Court's most junior member at that, is going to have some substantive effect on how Kennedy votes.

So what will Kagan bring to the Court besides her nugatory Svengali-like powers? I'm not sure that she brings a whole lot. Certainly, she'll replace one brilliant liberal-leaning legal mind with another brilliant liberal-leaning legal mind. Unlike Sotomayor, whose opinions were generally unremarkable and whose few articles and speeches were somewhat confused and pathetic, Kagan's clearly something of a legal genius. However, from the very little one can glean from what she's written, she doesn't appear to either be a particularly strong liberal or a visionary thinker. That, to me, is a problem, even though I am a conservative and would like to see a conservative Court. For people who are liberals, it ought to be a bigger problem. For the following reasons.

The state of the Court, as I see it, is something like this. For a little over 20 years now, Scalia and an evolving cast of conservative characters have, with a fair amount of success, attempted to impose their vision of constitutional interpretation and policy onto constitutional law. Whatever you think of this vision, it is a vision. Essentially, the Constitution is to be interpreted as it was understood at the time it was written (except when that's inconvenient or would produce terribly untoward results, at which point Scalia and Co. fall back on the policy rationales animating this whole project), which is nice for conservatives as the authors of the Constitution or its various amendments were a great deal more conservative and old-fashioned than we. When you ask Scalia, "why should we be bound by the intent of these old dead men who couldn't possibly foresee contemporary society," he and his conservative colleagues reply, "how else would you like to interpret the Constitution? Twist its vague language to mean something it wasn't supposed to mean? Interpret words like 'equality' in terms of what they mean today, where "what they mean today" will inevitably become, in the hands of a judge not bound by original meaning/intent, whatever that judge wants equality to mean today? Obviously no judge can tell what 'equality' objectively means today, as if it even meant one thing to all Americans; all he can do, once he gives up trying to tell what it meant to the authors of the text, is inject his preferred meaning. Or do you have another idea?"

The liberals on the Court, and arguably the liberals in the law schools, don't have great answers to these questions. They have no overarching vision of constitutional interpretation. Justice Breyer wrote a book about his theory, and pretty much everyone who reviewed it deemed it a huge failure. Essentially, he's a confused pragmatist; half the time when reading Breyer one doesn't know if one's reading law or a cost-benefit analysis. The general idea seems to be that Justice Breyer will read the Constitution in accord with what is good for us, where "what is good for us" is determined by lots of selectively deployed statistics and math. The others, brilliant though they are, have even less of a theory; they generally respond to whatever the latest crazy conservative innovation on the Court is with, "this is crazy and new and inconsistent with the precedents of previous, more liberal Courts, and it just sucks." And it may well suck in every case for narrow specific reasons, but without a deeper theoretical reason for why it sucks and why they're right about campaign finance or abortion or affirmative action, they're doomed, in the long run, to lose the argument. At some point, Justice Stevens essentially surrendered in the fight over interpretive methodology and attempted to out-originalist the originalists, as his dissents turned into counter-histories of what the framers really meant, .i.e. corporate speech isn't protected by the First Amendment because Thomas Jefferson hated big business (I imagine he also would've hated Nazis had they been around at the time, but this wouldn't create a Nazi exception to the First Amendment), the Second Amendment doesn't protect the right of people in D.C. to pack because it was really all about militias. This may have won him brownie points from... well I don't know who, but in the long run agreeing that analyzing Thomas Jefferson's feelings about crap is the way to read the Constitution is liberal suicide. Unfortunately, the liberal members of the Court have no other method to offer. Every time a really big case comes along and the conservatives reach some new shocking result, the liberals say that either (a) "Thomas Jefferson, despite what you say, is NOT on your side," or (b) "come on guys, this is totally contrary to all these decisions that came down in the... 60s, back when the Court was the total opposite of what it is today, but hey, those are still Supreme Court cases and you can't overturn them without damn good reason, and naturally, we being liberals don't think that your conservative reasons are good reasons. Of course, if the old cases in question were contrary to our own beliefs, we'd overturn them, but that, that there would be different. Somehow. We're not sure why."

Thanks to this sort of dithering, we have reached a point where, for example, your constitutional right to confront witnesses against you is today interpreted by reference to what the law in England was in 1787, which is to say, how the law was reported in Shakespearean English in cases we have poor records of from the 1600s. Then when some guy murders his wife and the prosecution tries to bring in her statement that he was a wife-beater into court (Giles v. California), the Court hits the 17th century law books and argues over the appropriate way to interpret the famous case from 1666 where Lord Morley got witnesses kidnapped while he was still in jail, both sides at least pretending that this is a normal way to go about interpreting the Sixth Amendment. This is an absurd state of affairs (both that this is the method and that no one contests it), and nominating a cautious moderate like Kagan isn't going to change things a bit. What you need is someone like Pamela Karlan, a Stanford professor who reportedly made his shortlist and actually has written umpteen articles and books about how to interpret the Constitution in a progressive way. I violently disagree with everything she's ever written, but she'd immediately become one of the three or four most important voices on the Court; she's that good. Unfortunately, Obama will never expend the political capital it would take to nominate someone who's on record as having some kind of coherent nonoriginalist approach to interpreting the Constitution, so we get nominees like Kagan and Sotomayor, carefully chosen for their lack of controversiality. The trouble is that, the Republican Party being the band of obnoxious, ignorant, willfully dishonest boors we are, any nominee who would actually have an impact would be controversial. As in so many other areas of his administration, Obama's too afraid of a little Republican opposition to get anything real done.