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.
So let’s trace a possible path.
1. Historically, mostly, Supreme Court Justice nominations were confirmed more matter-of-factly or deferentially. Probably out of an expectation that there wasn’t, really, that much at stake.
2. Then we have the New Deal role-of-government revolution, and the Court-Packing battles. The “amount at stake” / “potential to change America” factor went up.
3. Then we have the Warren Court, taking it up another notch. By gradual acculumation or arrogation of power, the “stake” rises.
4. Still, Presidents are mainly nominating not ideologues but widely respected-types, scholars acceptable to a large political base, and those nominations are largely confirmed without much resistance. Consider Ford with Stevens or Reagan with O’Connor and Kennedy, or GHW Bush later on with Souter.
5. But when it appears that Reagan might be trying to nominate Justices who might overturn the Warren Court jurisprudence, the Democrats change the game in a dark direction because the stakes are so high. Bork. Later – Thomas.
6. A period of some stability and comity afterward (Clinton/Ginsberg 98-0?), but when GW Bush took the Presidency (with perhaps a little help from the Bush/Gore flap), the game went permanently dark.
7. But, by then, there had risen a whole generation of new legal minds keenly aware of the Bork harbinger of things to come. They would have realized the most valuable tactics would be a career stealth, caution, diplomacy, and establishment-deferential-ism.
8. So now comes an era of the permanent confirmation-battle-drama, and the permanent stealth-caution-establishment Justice nominee.
9. But maybe we should embrace a court full of deferential establishmentarians. It would begin to make the whole country eventually feel what Obama has already concluded – that the stakes are not high anymore, and that the court cannot and will not change much. An establishmentarian group would reinforce that reality and the perception of that reality.
10. And then maybe Americans perceive the legislature as being the best place to go to ask for social reform, instead of relying on the courts.
11. And then, maybe, after a few decades of legal and political stability (or stagnation, or frustration, or whatever), we all chill out about the whole critical-importance-of-the-court-to-everything-in-our-lives thing. The pressure goes off, the confirmation battles return to unanimous formalisms, and more centrist, independent justices, honest about their opinions and agendas, arise.
12. And then it all goes full circle again.
— Indy · May 11, 06:45 PM · #
“[T]he [restoration of the ‘Constitution in exile’] is a live project within the conservative world.”
That may be what they tell each other at the Democratic soirees that Mr. Millman attends, but it’s pretty much of a fantasy, rather thoroughly debunked at the Volokh Conspiracy. (Of course, we know that Mr. Millman doesn’t consider Republicans worth reading or listening to.) Quite honestly, there are probably more professors committed to implementing socialism than to the “Constitution in exile.”
— y81 · May 11, 07:12 PM · #
For the most part, I am all for the President getting to pick who he wants for the Court, spoils of victory and all that.
But how is it obvious that Elena Kagan is qualified to serve on the Court? Is the sole qualification having gone to law school in the Ivy League?
I have little doubt that she will be confirmed, but her qualifications are pretty thin.
— S.A. · May 11, 09:16 PM · #
Rorty says Dworkin is a pragmatist. Dworkin says Rorty is wrong (and pragmatism is empty). What does Kagan tell us about this dispute?
— James · May 12, 01:36 AM · #
I presume that both Obama and Kagan took careful note of how David Souter, the original “stealth nominee,” sailed through confirmation in 1989. Thus, during the years when both Obama and Kagan were employed by the U. of Chicago law school, Obama published zilch in terms of legal scholarship, and Kagan surprisingly little. It would be interesting to know whether they discussed Souter with each other during those years.
— Steve Sailer · May 12, 10:25 PM · #
Very nice post, as always. Noah, you are a very good and reasonable thinker.
One thing, governments are the establishment, is it reasonable to expect governemtns to appoint anti-establisment supreme court judges?
The second thing is—which is an answer to the first thing—what Kagan seems, rather than a blank slate, is unidentifiable (at a fine enough resolution) as to ideology. We know she has a first class legal mind, that she is intelligent, and can work well with others. That’s not a blank slate. What we don’t know is what her ideology really is. And isn’t that how it’s supposed to be? If we wanted surity of how someone would rule we don’t need humans. We just need conservaitve and liberal computer programs to determine what is the conservative ruling and what is the liberal ruling. But maybe that’s what we want. Not me though. I want the best and most reasonable thinkers plus human feeling and instinct and growth.
So the point is, we don’t really know what she will be like or evolve into. Maybe she will be the anti-estblishment judge Noah wants. I think there is something to be said about respecting and expecting the years of growth on the bench that comes with the Supreme Court and nominating someone with, as they say in the NBA, upside (potential). You find someone with the basic tools (she has all the tools), talk to them and then go by instinct.
Of course if you are GWB and your instinct tells you to nominate your family lawyer you should take some time to really look into that idea. Of course if you are GWB you should probably jsut do the opposite of what your gut is telling you.
I jsut had to get some anti-conservative digs in there. I’m not actually anti-“conservative.” In fact have recently discovered that I am some what of a Burke-ian. I jsut really dislike the modern american conservative movement for many, many reasons. One of which was their oft-stated (this was a cornerstone of the at-present-moment-abandonded conservative agenda) policy of placing reliable conservatives on the bench, helping to ensure Rove’s dream of a “Permanent Republican Majority.” Thus all the propoganda about ‘founder’s intent’ and ‘legislating from the bench,’ etc, that have gotten worked into the fabric of the judicial conversation like grime into a dishrag. The movement pursed this policy to the extent of actually founding legal schools to churn out potential judges, something that is still going on right at this moment. Somewhere some guy Bob Jones university is refraining from masturbaiting by once again going over his notes on conservative legal theory. Though I guess right now some gal at Wellesly is ruminating on the fine points of feminist legal theory while going down on her roomate. So it evens out.
— cw · May 13, 01:09 AM · #
We know she has a first class legal mind, that she is intelligent, and can work well with others.
We know this? Did we get this insight by divine revelation or something? Barring military recruiters from campus is a sign of how she can work well with others?
Are you sure you didn’t just make that stuff up?
— The Reticulator · May 13, 02:10 AM · #
Reticulator,
Why pray for divine revelation or just make stuff up when we can venture out into the world (while sitting aponst out behinds in front of the computer) and examine what information there is out there.
We can for instance, as Noah did, read her publications. “What do I glean from this reading?” [Noah asks]. “Nothing very different from what everybody else has been saying: that Elena Kagan has an intelligent and subtle mind”
Secondly, we can read what all her collegues say about her. They all very much say she works well with others.
That is what an intelligent and reasonable person does when they want to know something. They gather what evidence is available and then come to a conclusion, if possible.
About the military recuriters, from your tone, you obviously have not spent any time reading about that either.
— cw · May 13, 02:32 AM · #
Hey Reticulator,
I just went and looked at you blog and noticed you like bike touring. I don’t like bike touring so much as I like bikes and working on bikes. THe bikes I most like to ride are touring bikes (though I never tour). But I like the wider tire. My current bike is an old Dawes galaxy, which I like a lot. But I seem to need to build up a new bike ever few years so I started looking for a suitable candidate. About two days after I started looking I found an ’82 Trek 614 (616?) for $100. THen about two days later I was at this maybe autistic guy’s house—he buys bikes at garage sales and fixes them up and then very inefficiently tries to sell them—and he had a ’83 Trek 520 sitting behind his garage. He only works on moutain bikes so he sold me this one for $70 (I could have got it for a lot less but he’s maybe autistic.). SInce then I have been keeping my eye on Craigslist and visiting this non-profit bike store now and then and have seen an amazing amount of nice old Treks for $200 and less. It’s insane. Fabulous bikes for pennies. Maybe it’s becasue I live in Madison. Trek started just up the road and is still headquarted here.
What do you ride on your trips?
— cw · May 13, 03:03 AM · #
cw, I guess we’re opposites in bicycles, too. I like bike touring, but working on bikes not so much. I can do some of my own work — eg replacing chainrings and rear sprockets — but it’s not something I particularly enjoy. My touring bike is a Fuji tourer that I bought in 1996. It has well over 40,000 miles on it now. The Fuji is a good, economical touring bike, but as with most touring bikes comes geared too high for fully loaded touring. I’ve started to make noises about getting one of Bruce Gordon’s bikes. Those are at a different point on the price spectrum. The main thing I’d like is a more modern 9-speed cassette as opposed to the old 7-speed Shimano one I have now. Then I tell myself that if I’m going to go to all the expense of swapping out the parts group, maybe I should get a new bike for touring and use my Fuji as a beater for commuting. I would probably do more of my own work, too, if I could stand to have one of them out of service while another is available for riding.
Most of my riding is in the Great Lakes region — to historical sites connected with the 1832 Black Hawk war. Sometimes the connection is very indirect. A lot of that history took place in your back yard, of course, but I’m specializing in the Indiana-Michigan-Ohio parts. Our part of the story has not been so well known. Just the same, I like to ride in northern Illinois and southern Wisconsin once in a while. I love the Rock River country. It’s not hard to see why Black Hawk didn’t want to give it up. I still have more work to do at the Historical Society archives in Madison in my pursuit of more ride destinations in your backyard. I was going to refer you to one unmarked location south of Mt Horeb, but I see I still haven’t blogged about that one even though it has been nearly 6 years since I was there. (I rode 5200 miles that year. The only years I’ve done that many miles are years that have included parts of Wisconsin in the itinerary.)
— The Reticulator (aka Spokesrider) · May 13, 05:53 AM · #
cw,
“Everybody” also talked about how eloquent and intelligent Barak Obama was. There was maybe a 24 hour period early in 2008 when I thought he might be an acceptable President. But I listened to a few snippets on the radio for myself, and all I could hear was a hack politician with a tinny voice. And now we’ve learned that he isn’t so smart, either. He can spout conspiracy theories nonstop, but that isn’t a sign of great intelligence.
So I don’t put much stock in what “everybody” says, especially at a time like this when there is a massive media spin campaign. That isn’t what I’m looking for when I’m looking for evidence. As to military recruiters, I’ve been amused to see how all those people who get their talking points from elsewhere instead of doing their own thinking are using the word “briefly” as if that somehow changes things.
Of course, why does it matter that she gets along well with others? That’s not high on the list of attributes we want in a justice. Just about anyone can get along well with others, especially when s/he is in a position of power. Big whup. I presume that that particular talking point is designed to steer the discussion in one direction and away from others, as most talking points are intended to do.
(I have a pretty strong resistance to sales campaigns.)
— The Reticulator · May 13, 06:55 AM · #
so good,i hope that will be ok!
— ed hardy t shirts · May 13, 08:32 AM · #
Reticulator,
In one post, you speculate that those who praise Kagan’s intelligence are making things up.
Yet several posts later, you describe Barak Obama as somebody with a “tinny voice” who “spouts conspiracy theories non-stop.”
— turnbuckle · May 13, 12:43 PM · #
OK, turnbuckle, you caught me in an exaggeration. I said non-stop, but I wouldn’t have any way of knowing if he keeps doing it in his sleep.
— The Reticulator · May 13, 01:03 PM · #
Reticulator, if you want to persuade others that optimism about Kagan is unwarranted because likewise, optimism about her nominator was unwarranted, shouldn’t you at least try to make a compelling case for Obama as executive let-down?
You might plausibly argue that Obama’s sonorous delivery is a put-on— in the manner of Clinton’s compassion or Bush II’s ranch twang— but to describe his voice as “tinny” is just inaccurate. It’s typical of your observations in general.
Maybe your should ignore your own advice: don’t rely entirely on your “own thinking” for your talking points. Go elsewhere. A good start might be an on-line dictionary where you can search “tinny.”
— turnbuckle · May 13, 02:16 PM · #
Reticulator,
The blackhawk war by bike sounds like a very interesting pursuit. I like the way you think (in this area of life, ha ha). I’ll read your bike/blackhawk site further (I found your russian movie site interesting too). You know there is a ferry fairly close to your part of michigan that would be a very pleasant way to bring a bike to wisconsin. If you are ever coming this way, I recomend it. I took one of the best naps I have ever had on that ferry. My daughter was 4 at the time and she was getting antsy so I rented a cabin (what the hell, right?). Then we took nice long nap with the port hole open.
I’ve seen those Fujis and they are good. Thinking about new bikes, if I had the money I might get a Rivendell— http://www.rivbike.com/
Then again, it’s all about the frame and like I was saying, there are all these great 80s treks around with frames jsut as good as the rivendell (which gets some of its frames made in Waterloo WI which is where Trek started; I think there is some connection). For instance check out this bike: http://madison.craigslist.org/bik/1738014275.html
$250 for the bike (if it fit), the another $200 for better wheels (with the gearing you wanted) plus maybe some new chainrings and brakes —another $100— and you have a Rivendell level touring bike for $550.
Or, you could jsut put a 9 speed casset and some new chain rings on your current bike—$100 or so.
BUT… that is no fun! You need a new bike! A commuter and tourer.
About kegan and obama, eh.. who really cares. It’s all a puppet show whose strings I have no real access to. You seem feel about them the way I feel about the republican party (and it’s stinky tenticle, the modern american conservative movement). We’re undoubtedly both wrong and both right. I like to write and argue but I’m just not feeling it today for some reason.
— cw · May 13, 03:24 PM · #
cw, which ferry did you take? We’ve taken the one between Manitowoc and Ludington a few times, but there is also a newer, faster one that IIRC goes to Milwaukee. Our first trip on the Ludington one was on a ride to all the towns in the Midwest League — Class A minor league baseball — in 1996. (URL here.)
I like to collect ferry rides, but now you’re reminding me that I haven’t done any lately. The last one was when I caught the last ferry of the day across the Ohio River on my way to Marion KY. My bicycle and I took a couple in Ireland – one across the Shannon River and one to Cape Clear. Our family did some without bicycle in the Canadian arctic, the Alaska inland passage, to and from Newfoundland, and to and from Prince Edward Island before they built the bridge. There is also a nifty one across the Mississippi River to Cassville, WI. And there have been others on the Great Lakes and elsewhere. Ferry rides are a fine collector’s item, but I’ll probably never collect the whole set.
— The Reticulator · May 14, 03:10 AM · #
Yeah! And what’s up with those tiny ears? And how come he never, ever smokes? And why don’t we hear more about all that time he spent in the Nevada legislature?
— Chet · May 14, 05:49 PM · #
I took the Ludington one. If you really like ferrys, you should consider Seattle and the inland passage up to alaska. I can imagine a great bike trip in august involveing various islands and those ferrys.
That one across the mississippi river sound like it would make a nice family trip. We might check that out.
— cw · May 14, 10:20 PM · #
Yeah! And what’s up with those tiny ears? And how come he never, ever smokes? And why don’t we hear more about all that time he spent in the Nevada legislature?
Tiny ears? You can see his ears on the radio?
— The Reticulator · May 15, 02:52 AM · #
No, but after your comments above, I’m pretty sure you think you can. “TV on the Radio” is the name of a band, Ret, not something that people actually get.
— Chet · May 15, 07:32 AM · #
No, but after your comments above, I’m pretty sure you think you can.
I believe you. You sound like a person capable of thinking such things.
I think it’s important for there to be at least one person out there who doesn’t watch these people on TV, who avoids being influenced in his thoughts by the TV perspective. TV is full of idiots, anyway.
I did watch a couple of YouTube clips of Obama somewhere along the way, but that was long after I had heard him speak on the radio several times. You get a totally different idea of the tonal and rhetorical quality of his utterances if you avoid the influence of TV idiots.
FWIW, I’ve watched more of Vladimir Putin on TV or YouTube than George Bush and Barak Obama put together. Maybe even more than if you put Bill Clinton in the mix, but I’d be on shakier ground if I put him in that statement. There is no good reason to watch these people on TV. I did once listen to a full speech by Ronald Reagan, though, some time after he had left office.
— The Reticulator · May 15, 02:02 PM · #
My Dark Sith Master is correct as always.
There are only two kinds of incoming justices.
Living constitution justices (liberal) and constitution in exile justices (conservative).
A democratic president appoints the first kind, a republican president appoints the second.
conservatives seek to maintain the status quo and worship the past, thus are originalists, clinging to a zombie culture.
liberals seek to adapt the instructions of the constitution to demographics and culture.
This is the way IT IS SUPPOSED TO WORK, the tension between stagnation and dangerous progressive extremes.
What is broken now is that conservatives only care about the win, and have abandoned their stewardship of the yeoman farmers they are supposed to represent in the interest of exploiting their passions to win power.
— matoko_chan · May 15, 02:07 PM · #
clinging to a zombie culture…..200 years after Undead.
heh.
— matoko_chan · May 15, 04:09 PM · #