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August 2, 2010

Are we ready for decades of "Roberts v. Kagan"?

The question in the title of this post is inspired by this interesting commentary from Dahlia Lithwick at Slate, which asks "Will there be friction between the chief justice and Elena Kagan on the Supreme Court?". Here is how the piece starts and ends:

Anyone who watched Elena Kagan's performance before the Senate judiciary committee last month saw that under the bright lights of public scrutiny, she is quick-witted, conversational, and rarely cowed.  She's funny and charming, but she's not real big on deference.  And so one question that lingers, as the former solicitor general prepares to join the highest court in the land: Will those qualities help or hurt Elena Kagan in the darkened marble halls of the Supreme Court?

Kagan already has some history at the court. And it didn't go unremarked by court watchers last term that Kagan's six outings before the Roberts Court as President Obama's solicitor general were sometimes uneasy. Some of us suggested that Kagan — who'd never argued a case until she argued the blockbuster Citizens United campaign finance case last September — was still just finding her footing at the court.  Others observed that many of the justices, most notably Chief Justice John Roberts, appeared perpetually exasperated by her....

Even if the slings and arrows of oral argument are readily put behind them come October, Kagan and Roberts will still be worth watching in the coming years precisely because they make up two sides of the same coin: They are savvy, ambitious, and brilliant, as well as charming, outgoing, and persuasive.  Each of them swanned his or her way through the confirmation hearings with smiles and jokes.  Each masks strongly held views under a casual, easygoing demeanor.  As Kagan proved at her confirmation hearings, she isn't one to defer to authority; she'd rather push back and win or lose it on the merits. Roberts is precisely the same.  That may have been a recipe for disaster when Kagan and Roberts were on opposite sides of the same bench.  But it becomes an even more fascinating pairing once they're both on it.

As the title of my post spotlights, what makes this forthcoming battle(?) so interesting is the likelihood that it will be waged for decades.  Barring illnesses or surprisingly early retirements, we can and should expect Chief Justice Roberts and Elena Kagan to be serving together on the Supreme Court for 25 years and probably longer.  How they interact and each seek to shape constitutional jurisprudence is going to be a very long-running (and I hope very interesting) legal story.

Relatedly, I think we have already seen a bit of Alito v. Sotomayor, as SCOTUSblog charts show a high level of disagreement between the two newest Justices during their first year together.  Because both Justices are products of Princeton University, Yale Law School, prosecutor offices and long circuit service, their different judicial philosophies despite similar professional backgrounds is also worthy of examination and reflection.

Most broadly, it is so interesting that the quartet of CJ Roberts and Justices Alito, Kagan, and Sotomayor are likely to be key shapers of constitutional jurisprudence for the first half of the 21st Century.  Given just how constitutional jurisprudence dramatically changed from 1950 to 2000, it is fun to speculate whether and how this quartet will be able or eager to shape constitutional jurisprudence in the half-century from 2000 to 2050.

August 2, 2010 at 12:03 PM | Permalink


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It’s dangerous to assume that conflicting legal philosophies necessarily imply a fractious personal relationship. Justices Scalia and Ginsburg are fast friends, despite being near-polar opposites on the Bench.

Influential Supreme Court careers often come about by accident. Right now, the five conservatives have a pretty solid lock on the most ideologically polarized issues. Things could change dramatically, depending on whether a Democrat gets to replace Kennedy or Scalia; or a Republican gets to replace Ginsburg or Breyer.

Posted by: Marc Shepherd | Aug 2, 2010 12:44:10 PM

I disagree. All the Justices came from their cookie cutter criminal cult indoctrination camps. All Justices have the primary mission of effing the public and promoting the rent seeking interest of the criminal cult enterprise to which they all belong. Any flying sparks are for show only. As stated above, after work they get together to toast to and to laugh at the stupidity of the public.

Posted by: Supremacy Claus | Aug 2, 2010 8:40:40 PM

There is always a call for racial and gender diversity at the Supreme Court, but never a call for educational diversity. I'd like to see more graduates of state schools, especially from the middle of the country, considered. I suppose that may be considered "uppity" of me though. I sometimes forget only those educated in a few select schools can genuinely be considered smart.

Posted by: rob | Aug 3, 2010 4:13:49 PM

These schools take students with 4.0 averages, all A's. That means they are masters of the way things are today.

Here is the question, Rob. Do you want a court that mostly maintains the way things are, or one that will be wildly creative and will increase the pace of change in the law to that in computers or medicine? For example, almost nothing from 7 year ago is acceptable. In the law, doctrines from 700 years ago continue to rule. Would you like a jurisprudence on skates that is as wild as a venture capital practice. I know the law is too slow because it is in utter failure in every self-stated goal of every law subject. All the judges share a small incrementalist viewpoint, no matter how extreme their political views. In other areas of intellect, top students get to do independent reasearch, because the class stuff is too retro for their talents. In law school, the top students are hobbled, and get to spend an extra 40 hours working on the research papers of others, reading about subjects they know nothing about.

If you want to pick up the pace of change, you cannot have straight A students on the court. By definition, those can only report the present. And it is impossible for a creative, rapid pace change student to get an A. The teacher will not understand the innovative mind, and at best give it a C if not a D, if the innovation is threatening.

Posted by: Supremacy Claus | Aug 4, 2010 11:38:00 PM

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