The Washington Post puffed up the rookie performance of liberal Supreme Court justice Elena Kagan on the front page Monday. The headline was “Kagan made her mark in a bold rookie term.” But inside the paper was the more obvious conclusion, in the headline: “Kagan soothed liberal fears by shoring up the court’s left flank.”
Reporter Robert Barnes is one of many liberal reporters who like pretending that Kagan was somehow an ideological mystery during the confirmation process, despite being picked to be Barack Obama’s solicitor general before the high court.
While Kagan’s writings as an academic did not suggest a strong legal philosophy, her opinions and dissents from the bench have shown a conversational, confident writer, at times as sarcastic and cutting as a veteran. And liberals who worried that she would not shore up the court’s left flank have so far found their concerns unfounded.
The man she replaced, Justice John Paul Stevens, said he can think of only a couple of cases where she voted differently than he would have. And the senior liberal justice, Ruth Bader Ginsburg, seems especially taken with her. “She has already shown her talent as an incisive questioner at oral argument and a writer of eminently readable opinions,” Ginsburg said in a speech this summer.
Richard Lazarus, a Harvard law professor who closely follows the court, said the “most striking thing about the term, especially since she had never been a judge, was that she hit the ground running and seemed to fit right in at the court.”
In two cases, she wrote powerful dissents that displayed a strong opposition to government efforts that aid religion and a lengthy defense of campaign finance laws enacted to remove corruption from politics.
In both, she represented the liberal side of the court. She received plaudits for her crisp writing and uncompromising language, and a few questions about whether she was too brash for a rookie...
She also was tough and sarcastic in her dissents; Cornell law professor Michael Dorf called it “channeling her inner-Scalia,” referring to the senior justice’s famously acid-tipped pen. Dorf thought it was at times the wrong tone for Kagan in her first year. “It struck me as her saying, ‘Hey, I can be one of the boys.’ ” he said. But he acknowledges that others disagree.
For instance, in the campaign finance dissent, she said her colleagues on the other side thought that they had found a smoking gun. “But the only smoke here is the majority’s, and it is the kind that goes with mirrors,” Kagan wrote.
When her interviewer at Aspen read that line, the audience laughed and applauded. Kagan said: “You know, listening to that, I’m not sure I would have written it that way again.”
That's the Aspen Institute, all right -- the liberal establishment, often accompanied by top journalists. After all, Aspen head Walter Isaacson a former CEO of CNN and longtime editor at Time magazine.
