Center for American Progress

: The Living Constitution and the Kagan Nomination
Past Event

The Living Constitution and the Kagan Nomination

Progressivism on Tap with Dahlia Lithwick

6:00 - 7:30 PM EDT

The Progressive Studies Program hosted a Progressivism on Tap event this week with Dahlia Lithwick, senior editor at Slate and one of the foremost legal experts on the Supreme Court. Lithwick’s discussion reminded progressives how important it is to pay attention to the Court and to articulate a progressive vision of jurisprudence akin to the “living Constitution” model, which acknowledges that the Constitution was never meant to be a set of static rules but rather a set of principles to govern the legal contours of a dynamic and evolving society.

Contrary to conventional wisdom, Justice Anthony Kennedy is not the Court’s “decider,” according to Lithwick. This title now belongs to Chief Justice John Roberts, who is the Court’s “winningest justice,” having been in the majority for 92 percent of the cases in the past term. Lithwick, however, bemoaned the Roberts Court’s progression from somewhat moderate conservatism to radical judicial activism, saying “the entire center of the Court has fallen out.”

She called the Citizens United decision—which essentially manipulated First Amendment protections to open the floodgates on corporate spending on elections—“emblematic” of judicial activism but speculated that the majority was taken aback by the public outrage that resulted and will probably not overreach so egregiously in the future.

Lithwick believes President Barack Obama nominated a judge most like himself in Elena Kagan. She even quipped that Kagan was the “girl version” of Obama. Both Obama and Kagan seem to believe in a greater sense of deference to other branches of government and to precedent, and that the Court should not be in the business of going against these democratically elected bodies unless what they do is truly unconstitutional.

Lithwick acknowledged that Elena Kagan is not the new Louis Brandeis that progressives were hoping for, but she was more optimistic than she was before she attended Kagan’s Senate Judiciary Committee hearings in late June. Dean Kagan could not be very candid during the hearings, of course, but she still took the opportunity to critique the “balls and strikes” model of court decisions Roberts claimed to follow when he was questioned during his hearings. "Balls and strikes" is a metaphor for the belief that judges should merely apply clear and predetermined legal lines, rather than using their judgment and intellect to solve complicated matters of law within particular cases.

Kagan simply acknowledged that being a Supreme Court judge does indeed require “judgment” instead of the “balls and strikes” model where apparently thought and wisdom are not required. Lithwick called on progressives to follow Kagan’s lead and remind Americans that the Constitution was not written to be static and inflexible, but was instead designed to be dynamically applied to an ever-changing and evolving country. After all, according to the balls and strikes model we might still be deciding political representation according to the three-fifths compromise.