Courtesy of Lawrence Jackson
President Barack Obama and Vice President Joe Biden with Solicitor General Elena Kagan in the East Room of the White House.
Many “isms” are flying around the Judiciary Committee hearing room as senators continue to grill Solicitor General Elena Kagan in her Supreme Court confirmation hearings. Republican senators speak with scorn and worry of judicial “activism.” Will Justice Kagan be an activist in the mold of her mentor, Thurgood Marshall, looking for opportunities to intervene in political disputes and look after the little guy? At the same time, senators from across the aisle decry the “activism” of the conservative bloc of the Roberts Court, noting the relative frequency in recent years of justices’ invalidations of legislation.
To be sure, both perspectives ring rather hollow in the crucible of political point-making, but they do highlight an important argument that is well-illustrated by the give-and-take between the nominee and the senators. Truly, the modern Supreme Court is ground zero for struggles over contested policy matters in modern America. That the judiciary should avoid what a distinguished justice from an earlier era called “the political thicket” seems quaint advice in an era in which nearly every major policy disagreement ends up in litigation and, indeed, often on the docket of the Supreme Court. Yes, claims about judicial activism may be question-begging since, after all, one person’s activist is another’s protector of the Constitution. But senators on both sides are noting something significant in pursuing the issue of whether the court has become increasingly immoderate.
The same general issue gets raised in Republican senators’ accusations that Kagan might align herself with “progressivism.” She is tagged at times as a legal progressive — someone who would likely use her position to advance a welfarist, liberal agenda through her judicial decisions. Tellingly, Kagan has reassured senators that she subscribes to neither “ism,” that she regards the role of a Supreme Court justice in fundamentally more modest terms. Further, she expresses an acknowledgment of and appreciation for the primary role of the two political branches, Congress and the Presidency, in the policymaking process. One might suspect that this appreciation is the direct result of her sustained involvement in these processes as a White House policy official and also as a scholar who focuses on the regulatory process and the separation of powers. I do hope that the message that is being sent is that she views the court as properly deferential and ultimately restrained in its intervention in politically fraught matters. Where the court squanders important capital is where it eagerly takes up a cause without careful assessment of whether it is in any decent position to settle a political controversy. The duty of the court, as Kagan has ably explained, is to resolve disputes properly brought before it; the court exceeds this duty when it fails to show humility and practical judgment.
Kagan’s testimony is ultimately reassuring to those who see the Supreme Court’s role as supplementary to the American system of representative democracy — an important check, to be sure, but an institution that can seldom get too far out in front of public opinion and legislative prerogative. As Kagan’s admirers have frequently pointed out as the hearings unfold, her political instincts have served her well in her demeanor before the committee. More important than these skills is whether Kagan’s careful replies forecast a political pragmatist at work. Time, of course, will tell.
Daniel B. Rodriguez is the fellow in law and urban economics at the Baker Institute. He is also the Minerva House Drysdale Regents Chair in Law at The University of Texas at Austin.