The Justice of Oz
As Elena Kagan shows, you need to lose your heart, brain, and courage to get on the Supreme Court.
That's the kind of charming candor one used to be able to get away with in discussions of the judicial craft. But as Justice David Souter recently noted, the new orthodoxy is that a justice's own "experiences and values" have no place whatsoever at the high court. Experiences and values are the same as biases. Just ask the newest justice, Sonia Sotomayor, whether her experiences and values would ever infect her judgment. (Senators did. She said "no.") Kagan's suggestion that there is some space in the confirmation process in which to probe the judicial heart seems almost quaint today. A judge with a heart is even more terrifying than a judge with a brain.
Of all the unjust criticisms of Kagan, the most unjust is that she is a soulless careerist with no moral core. Reading Kagan's review of Carter's book, one is struck by her political bravery—taking random personal whacks at Justices Scalia, Thomas, Ginsburg, and Breyer. That's the same kind of personal bravery you find in her Clinton-era memos. When it comes to tactics, people, and politics, Kagan is uncommonly forthright and direct. She just doesn't say what she plans to do with all that forthright directness once she's seated at the court.
Kagan's scholarly approach is to try to synthesize and reframe. She has a sharp ear for process and a strong voice for moving forward, for reaching a decision. What she seems to do quite naturally—listen to all sides and then recast the debate—is exactly what will make her an effective justice. The lingering question is whether she can be a brave one.
The one thing Kagan has done perhaps most effectively in her career—as an academic, as a political adviser, and as a dean—has been to avoid doing or saying anything so terribly controversial that she would become another Robert Bork. She has managed to avoid, quoting Carter, being cast as one of the "radical monsters—far outside the mainstream of both morality and law." Her critics on both the right and the left suggest this makes her an empty shell. But re-reading her 15-year-old thoughts on the silliness of the confirmation process, I suspect it just makes her very smart. Political and ideological bravery are admirable qualities, yes. But they are also career-enders. Back in 1995, Kagan already understood that the journey to the Supreme Court has become the mirror image of a trip to Oz. You need to lose the heart, the brain, and the courage before anyone lets you in the door.
So it's interesting to contrast Kagan's intellectual review of Carter's book with her own professional response to it. Even as she was critiquing Carter's ideas, she was also making them obsolete. She was calling for a deep and substantive review of a nominee's jurisprudential philosophy just as she was managing to bury her own. She was pushing for philosophical transparency just as she was becoming philosophically unknowable. And she was celebrating the national seminar of the Bork proceedings just as she was guaranteeing that she would never participate in anything of the sort. Kagan has fashioned herself as the first post-Confirmation Mess justice, and, quite frankly, she is the last person we should blame for that. As Kagan herself asked of the justices who did whatever tap-dancing necessary get confirmed before her, "Who would have done anything different?"
Dahlia Lithwick writes about the courts and the law for Slate.