Hearing Dahlia Lithwick speak about the Supreme Court at last summer's AALL conference was the high point of the meeting for me. She was insightful, funny, erudite, and entertaining. In a recent issue of New York, Lithwick turns her attention to the newest Supreme Court justice--Elena Kagan--and offers a review of her first year on the bench. Entitled "Her Honor," the article describes the controversy over whether Justice Kagan (as well as Justice Clarence Thomas, whose wife is affiliated with a group that has openly opposed the Patient Protection and Affordable Care Act) should recuse herself from the challenge to the Act when it comes before the Court. The argument in favor of Justice Kagan's recusal is that when she served as Solicitor General, Justice Kagan "both strategized about and advised the administration on the law, and also expressed opinions on its consitutional merits, in violation of the recusal rules." For another view, also largely positive, of Justice Kagan's first year on the Court, see this article from the Washington Post.
Lithwick portrays Justice Kagan as anything but the "frothing ideologue" her opponents tried to make her out to be before her confirmation. Nor is she a "self-serving careerist and party hack." Justice Kagan is a good listener who pays careful attention during oral argument both to the attorneys and to her colleagues. She does ask questions (fewer than Justice Sonia Sotomayor, who asks a lot of questions), but tends to be deferential to the other justices, some of whom ask lengthy, tortuous questions. Lithwick also points out that Kagan has earned high marks for her writing:
Like Scalia and Roberts, she uses short, crisp sentences. Jargon at a minimum. Memorable metaphors that make complicated ideas accessible. It's as if half of her is writing to influence her colleagues while the rest of her is writing to sway everyone else. ... Kagan has repeatedly used the words imagine and you and writes directly to the reader, ... a technique that instantly "draws the audience into the process of decision-making."
But it also signals something about the way Justice Kagan thinks. She's interested in working through the argument--both sides fully credited--and appealing to readers to weigh in, instead of beating them down with a doctrinal worldview.
Lithwick believes that ultimately Justice Kagan will not recuse herself from the health-care case any more than Justice Thomas will. "She will decide it as a member of a larger body, triangulating against the words of the Constitution and the constraints of prior precedent."