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Elena Kagan's First Year on Supreme Court Shows Judge With Chutzpah

Kagan, seen during a champagne reception celebrating her appointment as Dean of Harvard Law School in this April 2003 file photo, ascended to the position only two years after receiving tenure. In 2009, she left the Law School to serve as solicitor general and was nominated to the Supreme Court in 2010.
Kagan, seen during a champagne reception celebrating her appointment as Dean of Harvard Law School in this April 2003 file photo, ascended to the position only two years after receiving tenure. In 2009, she left the Law School to serve as solicitor general and was nominated to the Supreme Court in 2010.
By Caroline M. McKay and Zoe A. Y. Weinberg, Crimson Staff Writers

It happens—or will happen—to all of us. And during her first year on the U.S. Supreme Court, it happened to Associate Justice Elena Kagan.

She got jury duty.

Like any Washington D.C. resident, she reported to the Moultrie Courthouse—a stocky, busy, fluorescent-lit federal building where the constant traffic has left a layer of grime on its facade. Kagan went to the third floor, stood in line at the jurors’ office, and proceeded to wait in the the jury room—a vast space with paintings of African tribal women on the walls and with windows that look down on a Cosi and an Au Bon Pan. Amicably chatting with the few people who recognized her, Kagan pulled out documents and began working away, making notes in the margin of a legal brief.

The image of Kagan, dutifully showing up for court with the rest of the city’s residents, is in one way representative of her brief tenure on the court. During that time, Kagan has made a point of making her opinions more accessible to the public, writing in a colloquial, approachable style that bears surprising resemblance to a fellow justice, Antonin G. Scalia.

Scalia has come to be indisputably recognized as the court’s best writer and as someone who forcefully and unabashedly expresses the hopes and ideals of conservative jurisprudence. And in two dissents this year it appears Kagan may be emerging as a similar figure for the left.

One year ago Saturday, Kagan was sworn in as an associate justice of the U.S. Supreme Court. The early verdict on her first year indicates that Kagan is not only shaping up as the liberal bloc’s most eloquent voice but also as a consensus builder in the style of Chief Justice John G. Roberts ’67 who has proven to be highly influential in building majority coalitions.

Kagan’s first year—during which she recused herself from nearly as many cases as she judged—offers only a premature indication of her future on the court but does give a glimpse of a feisty jurist who seems to be quickly finding her voice as a justice.

LEADER OF THE LEFT?

Kagan has never been afraid of speaking up.

As a girl living on the Upper West Side of Manhattan, Kagan negotiated with her Rabbi for a more serious bat mitzvah ceremony, one more like the male bar mitzvah. At the time, it was not customary at her synagogue for women to read the Torah or have their services on the Jewish sabbath.

The story of Kagan’s coming of age ceremony is often cited as an example of Kagan’s forceful, somewhat iconoclastic personality, a sense of determination and diplomacy that experts think could make Kagan a leader among the Supreme Court’s liberal judges.

Law School Lecturer Thomas C. Goldstein—who has argued many cases before the court and founded the influential SCOTUSblog—says that Kagan’s ability to communicate with and ultimately convince colleagues will ultimately make her a player.

“She just has what everyone acknowledges as an unbelievable capacity to deal with people, [and to] get other people to listen to her,” Goldstein says.

Goldstein says that so far, Kagan has “focused her fire,” only asking questions or making arguments when they were particularly poignant. While Kagan has worked in the past to prevent being perceived as an ideologue—what Goldstein calls “not putting herself in a box”—that hasn’t stopped watchers of the court from trying.

Many liberals hope that Kagan—an outspoken lawyer who has never been afraid to shake up even the most storied of institutions—would emerge as a ‘Scalia of the Left,’ someone who would be able to articulate the ideals of the left in decisive and understandable prose.

Scalia, the pugnacious standard bearer of conservative jurisprudence, has a knack for articulating conservative principles with witticisms and idioms that ruthlessly dress down his opponents’ dry legal prose.

In United States v. Virginia, a case that struck down the Virginia Military Academy’s male-only admissions policy, Scalia dissented in classic style, excoriating the seven-judge majority in the case.

“It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members' personal view of what would make a 'more perfect Union' (a criterion only slightly more restrictive than a 'more perfect world') can impose its own favored social and economic dispositions nationwide,” Scalia wrote.

It is writing like this that has made Scalia the eminently relatable—and quotable—justice who has done much in advancing a conservative agenda. So many liberals hope that Kagan will be able to serve a similar role for the left in making the case to the public for liberal jurisprudence.

Both Goldstein and Law School Professor Mark V. Tushnet ’67 say that parallels with conservative justices are difficult to make but argue that that Kagan may be more of a ‘Roberts of the Left’ than a ‘Scalia.’

And according to Law School Professor Richard H. Fallon, that may not be a bad thing.

“Some people think that Scalia has been so muscular, he has failed to achieved the influence with his colleagues that he might have achieved had he been less muscular,” Fallon says. “He has not been successful as a coalition builder.”

Roberts, meanwhile, has proven an expert coalition builder on the court, finding himself voting with the majority in 91 percent of cases in the 2010-2011 term. With the current makeup of the court, liberal and conservative justices are evenly divided with four members in either wing. Justice Anthony Kennedy is the key swing vote, and during the past term he has been the deciding vote in a number of controversial cases.

With Kennedy in the middle, observers of the court figure that the success of either ideological wing depend in large part on which side is able to recruit Kennedy to vote with them. And during the past year, the liberal wing of the court has had difficulty gaining Kennedy’s vote. Kagan has voted with him in only 71 percent of cases.

During the past term, Kagan has found herself voting most often with the liberal wing of the court, siding most often with Justice Sonia Sotomayor with whom she voted in 94 percent of cases. Kagan sided with Justice Ruth Bader Ginsburg in 90 percent of cases and with Justice Stephen Breyer in 88 percent of cases.

But Law School Professor Richard Parker says things may change once Kagan settles in on the court.

“I think that she needs and wants to be known as an individual on the court,” Parker says. “If you’re the new justice, you want to play the game as it’s being played, and her natural affinity at the beginning would be with the left. If in five years she’s bloc voting with them, I would be shocked.”

ON WRITING WELL

Feeding the hope of some on the left, Kagan’s first year on the court has proved that she can write in an engaging, witty prose—a style that can go toe-to-toe with Scalia’s muscular conservatism.

Her colloquial writing style—using poignant metaphors, theoretical examples, and diction like “topsy-turvy” and “chutzpah”—make her opinions sharp and easy to understand. A recent article in The New Republic described two of her dissents as sounding more like New York Times op-eds than traditional legal writing.

In a sarcastic, biting dissent to a 5-4 ruling that struck down an Arizona public finance law, Kagan wrote that opponents of the matching funds law “are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received—but chose to spurn—the same financial assistance. Some people might call that chutzpah.”

Kagan’s efforts to communicate with a broader audience are in line with her willingness to open up the Supreme Court to the public. The court is often perceived as a closed off institution, and Kagan has spoken publicly about her view that cases in the chamber should be broadcast in order to educate the public, saying in a speech that “this is an unbelievable court to watch.”

“[Kagan] is beginning to develop a distinct and refreshing voice... a kind of snappy colloquialism interjected into the legalism that I think bodes well for her,” Parker says.

Kagan has garnered attention for two opinions in particular—her dissent in a case in which the Court decided to allow tax credit for religious institutions and her dissent in the ruling striking down the Arizona campaign finance law.

Fallon says that Kagan’s writing is marked by a “sprightly style” and that her opinions are a “pleasure and relief” to read from the “very, very turgid” style of other court opinions.

“She has turned out to be a really terrific writer,” Fallon adds.

Tushnet says that Kagan’s writing style emphasizes clarity that “at the very least newspaper reporters can understand. She puts things pretty sharply.”

THE LONG HAUL

After the Senate confirmed her to the court, Chief Justice John G. Roberts Jr. ’67 was the first to call Kagan. And in addition to congratulating the newest Justice, he went on to acknowledge that they would be spending 25 years together on the court.

“Only 25?” Kagan quipped.

At only 51, Kagan will most likely be on the bench for the long haul, leaving her plenty of time to cultivate a distinct voice and judicial philosophy.

But Kagan is still settling in. Because of her previous role as solicitor general, she was forced to recuse herself from a large number of cases this past term, and that means the 24 cases she’s ruled on may not provide much evidence for how Kagan differs from the other liberal justices on the court.

In nearly every case, Parker says that Kagan has sided with the established liberal side of the court, a pack that is “not distinct as individuals in either vote or voting pattern.”

During the past term, the liberal justices have maintained their tendency of voting together. The conservative wing—despite contrasting styles and philosophies among the justices—voted together at high rates, as well.

But over time, Kagan’s voting patterns and distinct legal reasoning may emerge more clearly. Supreme Court justices have a history of shifting in their opinions and evolving during their time on the bench. In one of the better known examples, Justice Sandra Day O’Connor was appointed by President Ronald Reagan and then moved gradually to the left during her time on the court.

And unlike most Supreme Court justices, when it comes to her philosophy, she’s starting from scratch. Kagan—who has worked in government and academia her whole career—heard her first case as a judge after she was confirmed for the court.

While Kagan was pilloried by Republicans in Congress during her confirmation process for her lack of judicial experience, Kagan is part of a long line of justices to ascend to the court without previous experience as a judge. The last person to make such a jump was William Rehnquist, who was appointed by President Richard Nixon in 1971. Rehnquist would go on to become Chief Justice and a highly influential member of the court as the leader of its conservative wing.

So while Kagan has emerged as an advocate for government neutrality and campaign finance reform, the definite outlines of a judicial philosophy remains hazy.

“It’s way too early to tell,” Goldstein says, referring to Kagan’s judicial philosophy. “I’m not even sure she knows.

The chutzpah, however, seems to be there.

—Staff writer Caroline M. McKay can be reached at carolinemckay@college.harvard.edu.

—Staff writer Zoe A. Y. Weinberg can be reached at zoe.weinberg@college.harvard.edu.

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