Experience Comes from More than a Judge’s Robe

Kagan Has Knowledge of the Law and the World at Large

Elena Kagan will join the bench with a rich knowledge of the law and a wealth of understanding about the world beyond her chambers, writes Ian Millhiser.

Supreme Court nominee Elena Kagan has a protective escort as she makes the rounds with Senate leaders and Judiciary Committee members on Capitol Hill in Washington. (AP/J. Scott Applewhite)
Supreme Court nominee Elena Kagan has a protective escort as she makes the rounds with Senate leaders and Judiciary Committee members on Capitol Hill in Washington. (AP/J. Scott Applewhite)

I worked for a judge once, and while I have many happy memories of my time there, one image still sticks out in my head. I would arrive at work every day, and walk down a dark marble chamber that few feet ever tread. When I reached the judge’s chambers, there was a heavy wooden door that only six people in the universe had a key to. I would open the door, sit down at my desk, and I would start reading.

When I wasn’t reading, I would write memos to the judge. The judge would read these memos along briefs and other documents to prepare for cases. When he wasn’t reading, he would write opinions.

Lest there be any doubt, he was a fantastic jurist. When I left the office at 7, 8, or 9 o’clock at night, I could almost always count on him to still be there. I could expect to find him working at his desk when I came into the office on a weekend. He was a dedicated and devoted servant of the law, and I believe that the law is better off because he played a role in shaping it.

But it is easy to see how many judges lose touch with the outside world, working in such a cloistered environment.

Solicitor General Kagan brings something very different to the nation’s highest Court. She was a senior policy advisor to President Clinton and in that role spearheaded an effort to pass legislation preserving common-sense regulations that prevented tobacco companies from marketing their products to children. Conservatives on the Supreme Court struck down these regulations shortly after Solicitor General Kagan left the White House on the implausible theory that tobacco is too dangerous to be regulated by the FDA.

So Kagan has been on the receiving end of a conservative bloc of justices who are more concerned with protecting powerful interests than they are with upholding the law. Her experience teaches her that workers, children, consumers, and the elderly all depend on laws Congress enacted to protect them—and that it is profoundly cruel for judges to fail to enforce such laws.

Much of the conservative bloc’s opposition to laws intended to protect ordinary Americans is ideological, but it also stems from their belief that abstract legal theories must be elevated over the will of Congress. In Alexander v. Sandoval, for example, the Court’s conservatives announced a new restrictive way of reading federal statutes and declared that it would apply retroactively to a civil rights law written four decades earlier. The conservatives’ unprecedented and idiosyncratic method of interpreting statutes ruled, and the will of the people’s elected representatives meant nothing.

Conservatives held in the Court’s more recent and infamous Ledbetter decision that a woman who is illegally paid less than her male coworkers has only six short months to seek relief, even if she has no way of knowing about the discrimination until those months had already passed. If these conservative justices had stopped to ask how the workplace actually works, their embarrassing attempt to immunize Lilly Ledbetter’s employer from the law could never have happened.

Solicitor General Kagan’s experience teaches her that fidelity to the law means more than simply sitting at your desk and imagining new theories of interpretation—unlike some of her future conservative colleagues. Kagan worked in the Clinton administration to shape the kind of progressive laws that are so often under fire by a conservative Court. She was the first woman to serve as dean of the Harvard Law School and as solicitor general of the United States, so she fully understands the struggles women still endure in the workplace. Both experiences advise her to ground her judging in reality, and to ignore abstractions that suck the very life out of the law.

And Solicitor General Kagan brings something else to the bench that is sorely lacking on the nation’s highest court—management experience. As the leader of one of the nation’s great institutions—Harvard Law School—Kagan dealt with many of the same issues faced by small-business owners and other employers throughout the country. She supervised staff, managed a budget, and worked hard to ensure that the school complied with the law. She will soon spend much of her time as a justice evaluating claims both initiated by and brought against other managers who struggle with these same issues. Her time as a manager will serve her well in resolving these cases.

There is nothing wrong with being a judge, but it is not the best way to learn how the world actually works. Kagan will join the bench with a rich knowledge of the law and a wealth of understanding about how the world beyond her chambers. Both traits make her a much-needed addition to the Supreme Court.

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Ian Millhiser

Senior Fellow