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Monday, June 21, 2010

Kagan: The Next Frankfurter?

Progressives have been debating whether Elena Kagan is liberal enough.  My view is that she is likely to be the next Felix Frankfurter—another professor from Harvard Law whose tenure on the Supreme Court is viewed today by many progressives as a disappointment. But Kagan, like Frankfurter, poses the question of what it means to be progressive.

Kagan and Frankfurter both come to the Court steeped in academic and theoretical debates about the nature of judicial review and the proper role of the Supreme Court.  In both the 1930s and today, the Supreme Court was very conservative.  As a result, the view of many liberal constitutional thinkers favored then as it does now judicial restraint rather than bold rulings aimed to radically alter society.  For Frankfurter, being a progressive meant cabining judicial discretion and deferring to the legislative branches—a natural response to the conservative judicial activism of the Lochner Court.  Many liberal academics today promote similar ideas in the name of judicial minimalism or popular constitutionalism—think Sunstein, Tushnet, and Kramer.  This, too, is a natural response to the conservative judicial activism of the current Supreme Court.

When law professors are appointed to the Supreme Court, they often bring with them their academic approaches to judging.  Justice Scalia brought with him the views that were, in the early 1980s, emerging as counterweights to the Warren Court: originalism and a forceful view of property rights.  Justice Breyer reflected the “third way” approach that was just becoming popular in the mid-1990s among many liberals, one that recognized of the value of markets and the limits of government regulators to solve problems. 

If Kagan follows this path, she may disappoint those on the left who are looking for a bombastic Justice resembling William Brennan.  But the left isn’t uniformly favorable to Brennan’s assertive approach to constitutional interpretation.  Given the backlash that Brennan’s approach unleashed, many prefer a more restrained judicial role.  If she manifests this view in her rulings, Kagan may turn out to be very progressive—but in a particularly Frankfurter-ian way.

Posted by Adam Winkler on June 21, 2010 at 03:03 PM | Permalink


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Justice Brennan was "bombastic"? Really? You could certainly call Justice Brennan lots of things -- liberal, progressive, assertive, strategic, even activist -- but "bombastic"? Hmm. Perhaps we have different ideas about what bombastic means, Adam . . . .

Posted by: anon in bellevue | Jun 21, 2010 3:44:34 PM

I second anon, "bombastic" seems quite over-the-top and inappropriate.

Posted by: Patrick S. O'Donnell | Jun 21, 2010 4:10:30 PM

I think I agree with the suggestion that "bombastic" isn't quite le mot juste, although I get what you're talking about. Perhaps "expansive" or "fulsome" or even "aggressive" would fit better. Certainly "non-miminalist" fits what you're talking about.

Posted by: Paul Horwitz | Jun 21, 2010 5:41:48 PM

I didn't intend to call Brennan bombastic, and don't believe the sentence is properly read to level that charge. It was the nominee who would be bombastic -- the nominee some on the left have hoped would take on the likes of Scalia, but with Brennan's views. Sorry for the confusion.

Posted by: Adam Winkler | Jun 22, 2010 12:17:52 AM

I would think that the mot juste for Brennan would be "strategically incoherent": Like Rehnquist, Brennan tended to write "fact-sandwich" opinions that could pull together five votes because they never really provided a clear justification for a legal conclusion. Such opinions begin with some fairly meaningless abstract formula, list of bunch of facts in the middle, and then conclude by stating that some uncertain combination of these facts somehow indicates a legal conclusion. Penn Central was Brennan's classic "fact sandwich," as Morrison v. Olson was Rehnquist's.

If Kagan is going to pull together 5 votes with that sort of unappetizing fare, I guess I'll be a just a wee bit disappointed, if only in my capacity as a parochial law prof: Such opinions are hell to teach to 1Ls.

Posted by: Rick Hills | Jun 22, 2010 9:23:49 AM

Thanks for the clarification, Adam -- and certainly no need to apologize for any confusion. Your sentence admits two readings, I think: I took one when you meant the other.

Parsing aside, I do wonder how confident you are in your substantive conclusion. You write that law professors making the jump to the Court often bring academic approaches to judging with them. This may be true, but I wonder about two things: First, how deep is your sample set here? Are you thinking about Scalia, Breyer, Frankfurter, and another here or there? If so, is that enough to base your concerns about Kagan? Second, what's the alternative? I don't mean to be daft, but really: The Supreme Court is as much an ivory tower as Langdell library is. Isn't it inevitable that they take an academic approach to this stuff, at least in the sense that you seem to be using that term?

Posted by: anon in bellevue | Jun 22, 2010 9:53:14 AM

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