Thursday, August 04, 2011

Justice Kagan's "Remarkable Debut"

I am not feeling very positive about President Obama right now. He caved in to the extreme right wing of the Republican Party during the recent debt-ceiling crisis and displayed a stunning lack of leadership. He became absolutely invisible, completely marginalized. Can you imagine Congress ignoring Franklin Delano Roosevelt or Lyndon Johnson? Can you imagine Roosevelt or Johnson letting a bunch of extremists set the national agenda as Obama has done? However, no matter what happens during the rest of his time in office, Obama can be proud of his nominees to the Supreme Court. Both Justice Sonia Sotomayor and Justice Elena Kagan, the newest Justice, are proving to be worthy additions to the Court.

Of Kagan, Jeffrey Rosen writes in The New Republic, "One of the most surprising developments of the last term was Kagan's emergence as an eloquent voice--surprising because it often takes new justices a few terms to hit their rhetorical stride." Rosen contrasts Kagan with Justice Samuel Alito, one of whose early dissents was "dry and legalistic," and with Justice Sotomayor, who "has not yet developed a distinctive style," still writing much as she did while on the Second Circuit, "focusing on factual details and parsing precedents."

I recall during Justice Kagan's confirmation hearings last year, during which her lack of experience on the bench was discussed and considered to be a weakness, at least by some commentators. Given this lack of prior judicial experience, it is all the more surprising that she has made such a strong beginning on the Court.

In her first year on the Court, she wrote three dissents, two of which combine Scalia's gift for the sharp aphorism with John Roberts's powers of analytical dissection. But she also has something more: an ability to puncture her colleagues' bloodless abstractions and tendentious arguments, and to explain the constitutional stakes in plain language that all citizens can understand.
Rosen concludes by conceding that "Kagan can't achieve greatness merely by tossing off pithy one-liners. She also needs to provide a positive vision of values in which she believes," as the greatest Justices have done.

It's still too early to tell what Kagan is most passionate about--aside from a devotion to government neutrality. But Kagan has made a remarkable debut, and, if she develops a positive vision in the years to come, she has the ability to make it resonate far beyond the courtroom.

The photograph of the three female Supreme Court Justices was taken at Justice Kagan's investiture on August 7, 2010.

No comments: