Wednesday, September 8, 2010

The Kagan Court

The Supreme Court begins its new term in a few weeks, and court watchers like myself will be eagerly searching for clues about how Elena Kagan’s recent confirmation will affect the Court.

Unfortunately, the confirmation hearings this summer were not much help. To no one’s surprise, Kagan proved to be just as skilled as other high court nominees at deflecting the senators’ questions about her policy views.

And really, who can blame her? While Kagan, in previous writings, has stated that she would like nominees to the high court to be more forthcoming about their policy views, in practice this type of candor was only likely to hurt her. Opponents of her nomination would have quickly branded her an activist and used her statements to build the case for a filibuster.

Now that the confirmation hearings are over, the only way we can learn about what sort of justice Kagan will be is by observing her behavior on the bench.

And, unfortunately, we will have to wait a while.

Supreme Court justices have stated that it takes about five years for them to adjust to the work of the Court. Developing a coherent judicial philosophy can take even longer, particularly for someone like Kagan who has never been a justice before. Recent reports indicate that the judicial philosophy of the Roberts Court is just beginning to cohere. So it could be many years before we know what sort of influence Kagan is likely to have on the Court.

At the moment, Justice Kagan is probably just trying to adjust to the staggering workload. Around this time of the year, the justices return from their summer recess and sift through the mountains of certiorari petitions that come in over the summer, making tough choices about which cases the Court will decide in the coming term. Even for seasoned justices, the workload is heavy, so for a new justice like Kagan much of her energy right now is likely to be devoted to sorting through all of these filings.

Once oral arguments begin on the first Monday of October, we may get some clues about Justice Kagan’s approach to the law. Most likely, though, we will see a deft questioner who will pepper opposing counsel on both sides with probing questions. It is often very difficult to predict how a justice will vote based on their comments at oral arguments.

More revealing will be Kagan’s votes on the merits, which we will learnwhen the decisions are handed down months later. Although freshman justices are usually assigned to write their first opinions in relatively noncontroverisal cases, in which the justices are all in agreement about the outcome, Kagan will have a vote in every case, and from these votes we can make inferences about her policy views.

Still, it will probably be at least five years, maybe more, before we will have a good understanding of what sort of justice Kagan will be. It would have been easier if, last summer, she had just told us.

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