Thoughts on Elena Kagan

Let me start by saying that, obviously, Elena Kagan is qualified to serve on the Court. Given that I have long advocated deference to the President’s appointments – and not just to appointments made by a President of one’s own party – I wish Kagan would get the kind of lopsided majority support from both parties that was given to Breyer and Ginsburg in the Clinton years – and even to Scalia in the Reagan years.

Okay: so President Obama should get the Court he wants. But what do I think of her as a nominee?

Not having worked with her, I decided to read one of Kagan’s published works – her essay Private Speech, Public Purpose – to get a window into the way she thinks.

The core argument of the essay is that the Court’s jurisprudence with respect to free speech cannot be adequately explained by reference merely to facts about the operation of laws that were or were not invalidated. Rather, the pattern can only be explained by the assumption that the Court was attempting to inquire into the motives behind the laws, and to discern whether these motives were “improper.”

It’s an intriguing argument. It’s not exactly a “legal realist” argument – she’s not saying that the “power relations” behind the legal language are all that is “really” going on, and that the legal language itself is a kind of cover. She’s saying that the Court wants to rule based on motive but that this is practically impossible, since you can’t directly prove motive, and therefore the Court comes up with roundabout ways of discerning improper motives behind speech restrictions.

Three things struck me about the article:

First, it was framed as descriptive rather than prescriptive in nature, and yet the language repeatedly crossed over from “is” to “ought.” That is to say: it claimed it was trying to understand what the Court was actually up to rather than trying to articulate a “correct” doctrine for assessing free speech claims, but it seemed eager to endorse this hidden doctrine of the Court – or, rather, there was a hidden presumption that extending the revealed logic of existing case law was what any Justice would want to do.

This reminded me of a book about legal philosophy that I read in college and still regard highly: Ronald Dworkin’s book, Law’s Empire,. Dworkin’s overarching metaphor for the law is the idea of a “chain novel” – a novel begun by one author, added to by subsequent authors, and so forth in an endless chain. Because it is intended to be an integral work of art, the contributions of each successive author must take account of the work of prior authors such that the work as a whole makes narrative sense. This is analogous to what judges do in deciding cases: there is no mechanical way to apply precedent; rather, the idea is to retain a kind of aesthetic unity in the body of case law such that new decisions follow comprehensibly from those before, even if they proceed in a new and unexpected direction (a plot twist). In such a framework, a porous boundary between “is” and “ought” with respect to existing doctrine is very natural: the work of a Justice is precisely to find the hidden narrative “thread” that would allow for future decisions to “make sense” in light of what came before. If it’s not already clear, I liked this very much.

Second, it was striking to me that language she chose was the “search” for “improper” motives. I kept recasting this in my own mind as distrust of the motives of authority, which, I thought, smacked less of “thoughtcrime” and actually made more sense in terms of the thrust of her argument (rarely was she actually arguing that the Court was trying to ferret out some hidden effort to suppress speech behind an apparently neutral law; rather, she was usually arguing that the potential for officials to use facially neutral laws to restrict particular speech acts or penalize particular speakers was reason enough to strike down legislation). I may be stretching to argue this, but it seems to me that particular choice of language on her part says something about her outlook on the world. “Distrust” is a posture that implies no particular relationship between parties. You can only “search” for motives if you have some relationship from which to gather data for such a search. It’s the language of someone used to trying to read people – a fundamentally social being, the sort of person you’d expect to wind up a successful law school dean rather than a highly regarded legal scholar.

Third, it was specifically interesting to me that Kagan did not tip her hand, even in a footnote, as to her view of Buckley vs. Valeo, a decision she discusses at length and that is an important link in her narrative chain explaining existing free speech jurisprudence. In introducing the section on Buckley she notes that the decision contains “one of the most castigated passages in modern First Amendment case law.” But the section goes on to make sense of the decision in terms of the “improper motive” theory that she is advancing, and she concludes thusly:

The ease with which improper purpose can taint a law directed at equalizing expression together with the difficulty a reviewing court will have in detecting this taint account for the Court’s approach in cases like Buckley. The reason for the approach is not that the goal of equalization itself conflicts with the First Amendment (though the Court often speaks in this manner); to the contrary, when Justice Scalia labeled the objective of equalization “unqualifiedly noble,” he may have used the term tongue-in-cheek, but he also used it aptly. The reason for the approach is instead that the goal of equalization often and well conceals what does conflict with the First Amendment: the passage of laws tainted with ideological, and especially with self- interested, motivations. Again in Justice Scalia’s words: “The incumbent politician who says he welcomes full and fair debate is no more to be believed than the entrenched monopolist who says he welcomes full and fair competition.” The harsh treatment of laws directed at correcting distortion, even when these laws are framed in content-neutral language, arises from the fear that if the usual standards of review applied, legislators would use these laws as a vehicle for improper motive, and courts would bless what the First Amendment proscribes.

Can you tell from that passage whether she is ultimately persuaded by this logic, or whether she disagrees? I can’t – and I think that’s deliberate.

What do I glean from this reading? Nothing very different from what everybody else has been saying: that Elena Kagan has an intelligent and subtle mind, but is extremely cautious and establishment-oriented in her thinking.

Any number of progressive Democrats have lamented that President Obama chose to nominate a cautious establishmentarian like Kagan when he could have appointed a new tribune of liberal jurisprudence. But it is clear from numerous statements on the subject that Obama does not believe that the Court can effectively play a leading role in the progressive transformation of American society – and because he thinks it can’t play such a role effectively, he doesn’t think it should play such a role. It should be pretty clear by now that Obama doesn’t want to appoint a “liberal Scalia” to the Court – someone who will engage in fierce ideological combat and push the Court to the left. Rather, he wants a Court that will defer to a progressive Legislature (and Executive). He wants a boringly progressive but deferential Court of Breyers, Sotomayors and Kagans in which Scalia’s fiery denunciations seem out of place.

Is that a good thing? On the whole, I think so. I think the Court does damage to its own legitimacy when it lurches in the creation of new doctrine. But Kagan is the fifth consecutive appointee to the Court to be cut from this deferential, establishmentarian cloth. I was disappointed but not surprised that President Bush declined to make an “interesting” conservative like Michael McConnell or Alex Kozinski his second appointment to the Court. Similarly, I’m disappointed but not surprised that President Obama has made such a boring liberal appointment. I don’t want a Court that believes its mission is to restore the “Constitution in Exile” and I don’t want a Court that thinks its mission is to advance the progressive agenda through the creation of new rights to welfare or whatnot (and, to be fair, while the former is a live project within the conservative world, the latter hasn’t been a serious goal of the progressive world for, what, a quarter century?). But sometimes a Court needs to be able to stand against what “everybody knows” – and the Justices most likely to be able to do this are the ones with strong convictions of their own.

I bring in evidence of this point Hamdi v. Rumsfeld. While only Justice Thomas sided with the Administration in this case, the plurality opinion was relatively deferential to the government, and attempted to assist the Administration in coming up with procedures outside the normal legal channels that would nonetheless pass Constitutional muster. That decision was written by Justice O’Connor, joined by Justices Breyer, Rehnquist and Kennedy. With the exception of the wild-card Kennedy, these were, at the time, the most government-friendly, deferential group on the Court.

Two dissents were written that were less deferential to the government. The first, by Justice Souter, joined by Ginsburg, disputed whether Congress had actually authorized detention of unlawful combatants. But the second dissent went much further, denying that Congress or the Administration could create any such alternative system for trying Hamdi, unless Congress were to suspend habeas corpus officially. That second dissent was written by Justice Scalia, joined by Stevens.

A Court entirely composed of principled defenders of conflicting doctrines would be a disaster in its normal course of operation. But at this point, I think we’ve got enough establishmentarians. The next two Justices to retire are likely to be Ginsburg and Scalia. Here’s hoping whoever is President when they do replaces them with men and women of similarly independent spirit.