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Unconvincing Endorsements of Kagan


I guess she will be a judge in the same tradition as Louis Brandeis, in the same sense that Vincente Padilla is a “Dodgers Opening Day starter” in the tradition of  Sandy Koufax.

To elaborate a bit, while they were different men in a number of ways, one thing that united the three previous holders of the seat Kagan will occupy was tough-mindedness and idiosyncracy.   Many of their most notable opinions were dissents and concurrences: for example, Brandeis in the free speech cases and Olmstead, Douglas in Poe v. Ullman, Adderly, and Doe v. Bolton, and Stevens in Bush v. Gore and Citizens United.    In this respect, they couldn’t be much more different than Kagan, whose renown is based on being a world-class ass-kisser consensus-builder.

Of course, if you think that Supreme Court justices can be managed in the way that a dean can manage their faculty, this can be seen as a feature; I find the idea pretty silly.   Even if you lend more credence to this than I do, however, there’s a problem: the failure to remember that networking is a two-way process.   Why would we assume that Kagan will be influencing Kennedy and Roberts, rather than vice versa?    One thing you can definitely say about Brandeis, Douglas, and Stevens is that they’re weren’t susceptible to manipulation by conservatives seeking votes…

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