Can Kagan Bridge Divided Court? Consensus Is No

Solicitor General Elena Kagan i i

Solicitor General Elena Kagan listens as President Obama introduces her as his choice for Supreme Court justice in the East Room of the White House on Monday. J. Scott Applewhite/AP hide caption

itoggle caption J. Scott Applewhite/AP
Solicitor General Elena Kagan

Solicitor General Elena Kagan listens as President Obama introduces her as his choice for Supreme Court justice in the East Room of the White House on Monday.

J. Scott Applewhite/AP

In touting Elena Kagan's qualifications, President Obama described his nominee to replace liberal Supreme Court Justice John Paul Stevens as a proven "consensus-builder."

Since his announcement, the Kagan-as-a-consensus-builder talking point has been the one most relentlessly promoted by supporters making the case for her Senate confirmation.

The evidence cited? Kagan, 50, now the nation's solicitor general, was widely viewed as a calming and popular force while dean of Harvard Law School, where she is credited with mending deep divisions among the faculty and breaking fundraising records.

But historians say that her successful stint as dean from 2003 to 2009 predicts little about how she will function as a member of the high court, particularly at a time when a five-vote coalition — much less a full nine-judge consensus — has proven elusive, if not downright impossible, for the conservative-leaning court's liberal wing.

And history provides scant evidence that an individual justice can serve as a coalition or consensus catalyst, says David Garrow, who has written extensively about justices and the high court.

"I think the concept is significantly oversold," says Garrow, a senior research fellow at the University of Cambridge. "Everyone who is up there on the court thinks they are bright enough to come to correct answers without someone massaging them, especially someone with zero judicial experience."

A Meaningless Term?

It's Garrow's view that Kagan's accomplishments at Harvard Law School have little bearing on how she'll be received as a justice.

Some liberal observers have also found Obama's promotion of Kagan's Harvard management skills small consolation for her lack of judicial experience and minimal written record. Blogger Glenn Greenwald of the online magazine Salon told NPR's Michele Norris that Kagan is basically "a blank slate," leaving progressives with no ability to determine what she would be like as a replacement for Stevens. Ruth Conniff, political editor of The Progressive magazine, wrote that Kagan and Obama "believe in fighting fire with blandness," and took note of the nominee's "scant writings."

Supreme Court historian Jim O'Hara, a retired Loyola University Maryland professor and administrator who says he voted for Obama, says he finds the term "consensus-builder" meaningless in the court nomination process — even though many presidents use it. In fact, conservative Justice Antonin Scalia, known for scathing criticism of his high court colleagues, was touted as "a consensus-builder" upon his nomination in 1986.

"When Kagan comes onto the court, is she going to show the path to heaven to other justices who just haven't gotten it?" O'Hara says. "Unlikely."

'The Rule Of Five'

When Obama speaks of a consensus, it's clear that what he's really talking about is a coalition. With the conservative-leaning court often divided 5-4 on hot-button issues, coalitions of the left or right have been typically built with Justice Anthony Kennedy as the fifth swing vote.

"Classic consensus-building, in a legislative sense, means that someone bridges a gap and finds common ground on which both sides can agree," says David Alistair Yalof, a high court historian at the University of Connecticut.

Chief Justice John Marshall, who led the court in the early 1800s, established dominance and consensus — the "norm of unanimity" with few dissents — but at a very different time in the nation's history, historians say.

The subsequent rule of the court was famously summed up by Justice William Brennan, who served from 1956 to 1990. He liked to explain to his new clerks that the most important rule in constitutional law was the "rule of five" — the number of concurring justices needed for a majority opinion.

"Brennan," O'Hara says, "is the only justice I can think of in modern history as a coalition-builder."

In the 1982 case Plyler v. Doe, for example, Brennan assembled a 5-4 majority coalition to strike down a Texas law that denied a free public education to children of illegal immigrants. The majority opinion Brennan wrote is a bit disjointed, Yalof says, suggesting the additions and subtractions he made to attract the necessary support.

Once In A Generation

In cases where justices have come together with a consensus opinion, Garrow argues that it has more to do with the historic sweep of certain issues than any individual justice's persuasive powers.

For example, the 1954 Brown v. Board of Education school desegregation case "is sui generis," Garrow says, "because every one of the justices realized it was a case of the century, and they were conscious of how it would loom in history."

Another unanimous decision, the 1974 United States v. Nixon case, was similar in that it involved the Watergate scandal and the historic definition of presidential powers.

Kagan's Path

Kagan also would come to the court with some limits on her immediate ability to help justices reach agreement.

She has no previous judicial experience, and faces a learning curve on substantive federal law. Because she currently serves as the nation's top lawyer and has argued before the Supreme Court, she will have to recuse herself from easily more than a dozen significant cases before the justices.

Garrow, who is working on a book about Obama, says he views the Kagan selection as having little to do with inside-the-court dynamics, and "everything to do with the national political appearance of his choice."

And while O'Hara says he believes Kagan will be confirmed and prove a good justice, he also notes that politics, like it or not, invariably plays a role.

"It is a rare president who can say that he has named the best person in America to take the position," O'Hara says. "You get the best person you can, given the political realities of the time."

Comments

 

Please keep your community civil. All comments must follow the NPR.org Community rules and terms of use, and will be moderated prior to posting. NPR reserves the right to use the comments we receive, in whole or in part, and to use the commenter's name and location, in any medium. See also the Terms of Use, Privacy Policy and Community FAQ.