2nd Week USS Kagan prepares to set sail

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Lexington

USS Kagan prepares to set sail

Behind the civility, it’s war in the Supreme Court

Jul 1st 2010

THIS may not have occurred to you, but a Supreme Court judge is like an aircraft-carrier. How? Just count the ways.

First: longevity. One of the first carriers to arrive off Afghanistan after 9/11 was the USS Enterprise, a carrier that first saw service in the Cuban missile crisis of 1962. When it retires in 2013 it will have given 51 years of service. An investment that continues to pay off after half a century is a wonderful thing. The justices of the Supreme Court are also investments for the long term. This week saw the retirement, still sound at 90, of Justice John Paul Stevens, who got his commission from Gerald Ford and has served on the court for 35 years.

Second: raw power. Once confirm‎!ed by the Senate, justices may sit for life and rule as they please, regardless of the expectations of the president who nominated them or the promises they gave the Senate in confirm‎!ation hearings. A long-serving justice can make a deeper mark on America than a president. In 24 years on the bench Thurgood Marshall, the first black justice, did as much for racial equality in America as Lyndon Johnson, who chose him. True, a justice is boxed in by the other eight judges on the bench, the words of the constitution and the rules of jurisprudence. But that leaves ample latitude. “Do what you think is right and let the law catch up,” Marshall said.

Last: like an aircraft-carrier, a justice goes to war. Behind all the civilities the Supreme Court is indeed engaged in a high-stakes war between its conservative majority and liberal minority. The fiction Barack Obama adopted when nominating Elena Kagan to replace Mr Stevens is that he chose his own solicitor-general and this former dean of the Harvard Law School because she happens to possess the wisdom of Solomon, not because of her politics. But everybody knows he needs a liberal to stop the court from moving further to the right than it already has under John Roberts, the present chief justice, a man more stealth-bomber than aircraft-carrier, whose professions of judicial modesty during his own confirm‎!ation hearings in 2005 gave little inkling of the controversial decisions over which he has since presided. It is a safe bet that Mr Stevens would not be retiring at all but for his desire to let a Democratic president pick his successor.

At her confirm‎!ation hearings in the Senate this week some of Ms Kagan’s Republican interrogators wryly acknowledged the truth of the matter. You are a liberal person, I am a conservative person, but elections have consequences and that’s just America, said the relaxed Lindsey Graham from South Carolina. Jeff Sessions of Alabama got more steamed up. Ms Kagan had barely practised law; her college thesis seemed to bemoan the decline of socialism in New York; when serving in the Clinton White House she had tried to restrict gun rights; at Harvard she had treated military recruiters in “a second-class way”. Having clerked for Marshall, was she also going to do as she pleased and wait for the law to catch up? Was she, gasp, a “legal progressive”?

If Ms Kagan was unsettled by this fusillade she did not betray it. She did not in fact betray very much at all other than a serene confidence and a puckish wit. Despite having complained in 1995 about the “vapidity” of the confirm‎!ation process, she chose vapidity over valour once she was in the hot seat herself, evading hard questions about her judicial philosophy, and abortion and gun rights, on the ground that it would not be “appropriate” to “grade” past cases in case they came up to the court again. As for being a “legal progressive”, she told Mr Sessions “I honestly don’t know what that label means.”

Barring some unforeseen calamity the cautious nominee will shortly be confirm‎!ed and USS Kagan will sail forth to do battle. Her arrival in Mr Stevens’s place will not much change but should at least preserve the existing imbalance of power on the court. If she turns out to be the liberal of Mr Sessions’s fears and Mr Obama’s hopes, she will follow her predecessor’s example and make common cause with a like-minded minority (Sonia Sotomayor, Stephen Breyer and Ruth Bader Ginsburg) against the conservative majority composed of Mr Roberts, Antonin Scalia, Samuel Alito and Clarence Thomas. Anthony Kennedy, the court’s swing voter, is conservative on most issues.

For better or worse, there will be no truce

To judge by the fast-growing proportion of voters who decline to identify with either party, Americans are repelled by the bitter partisanship that has gripped their political institutions. They may regret the fact that their supreme tribunal has succumbed to the same affliction instead of standing above politics.

In 2007 Jeffrey Toobin of the New Yorker wrote a book (“The Nine”) arguing that from 1992 to 2005 the cautious instincts of swing justices such as Lewis Powell and Sandra Day O’Connor produced rulings that reflected public opinion. But this, said Mr Toobin, was about to be challenged by a powerful conservative rebellion that gathered strength with the appointment in 1991 of Mr Thomas, who believes that years of rulings by liberal justices, including Mirandaon criminal warnings and Roe on abortion, went beyond the constitution and should be reversed.

The past year’s performance of the Roberts court has confirm‎!ed the liberals’ fear. Exhibit one was the Citizens United ruling, which threatens to unravel the whole tangle of campaign-finance law and which Mr Obama calls “a green light to a new stampede of special-interest money in our politics”. So the court is not only divided within itself but also sailing towards a new collision with the executive branch. Some will deplore this new sign that America’s dysfunctional polity is being crushed in the vice of faction. Others will say it is part of the necessary, institutionalised and never-ending quarrel that is the genius of the American system. Either way, the struggle continues.

Economist.com/blogs/lexington

United States