More than a week after the announcement of Elena Kagan as an Associate Justice, the nation is still debating and searching for clues about her judicial philosophy. Truth is, there are few such clues. If a page of history is worth a volume of logic (O.W. Holmes), then Kagan belies the rule. Her long and distinguished legal career reveals little about her legal mind. Unsurprisingly, many have focused on her personal life and tenure as dean of Harvard Law School. Some conservatives are taking delight at examining on her sexual life and questioning her stance against military recruiters at Harvard. Liberals generally are more diligent in asking whether she will truly serving the left as a Justice. I believe they likely will be disappointed.
Contrasting Kagan with her outgoing predecessor, the venerable John Paul Stevens, I find the former a consensus builder whereas the latter a greater dissenter. Stevens has led the left wing of the Supreme Court through a mixture of intellect, experience and will. Often, he has written forceful dissents against conservative opinions such as Heller and Citizens United. While he has tried to marshal other Justices to his views and build consensus with the right wing, Stevens nonetheless is apt to dissent when necessary. On the other hand, Kagan is a foremost consensus builder on a divided and conservative-leaning Court. Her academic hirings at Harvard and term as Solicitor General demonstrate her willingness to reach across boundaries, but will she continue to do so when it gets tough in the Supreme Court and the right wing refuses to budge? Will she command the respect that Stevens does, even years into her tenure? I do not see it happening as much. She may well, in building consensus, concur or reluctantly agree with the conservative Justices.
All that may be moot if Kagan turns out not liberal-leaning at all. I can infer little about her judicial leanings from her previous legal work. Her support for gay rights such as same-sex marriage is the most salient liberal bend, and many will expect her to uphold such rights as a Justice. On the other hand, she has supported strong executive power including warrantless wiretaps and holding enemy combatants without charge. Finally, Kagan preaches judicial restraint and non-activism. That news is a mixed blessing: she will defer to the political branches on constitutional questions regarding health care reform and financial regulation (good for liberals) but will also hesitate to use the courts to advance substantive rights. Overall, I see Kagan as a centrist instead of a liberal. Of course, any new Supreme Court Justice may swing either way and we won't know until a few years out, but given Kagan's consensus leanings and scanty judicial philosophy, liberals should not get too excited.
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