Elena Kagan is, simply put, brilliant. She has already held three of the most distinguished positions within the legal profession as the solicitor general of the United States, a former dean of the Harvard Law School, and a law clerk to the legendary Supreme Court Justice Thurgood Marshall. A seat on the Supreme Court is an unobtainable goal for most lawyers. But for General Kagan, it seems like the logical next step.
Yet brilliance is not enough to qualify even the most renowned attorney for a seat on the high Court. Kagan’s chief qualification for the bench is not her unquestioned intellect, but the contrast she offers to another equally talented jurist.
Chief Justice John Roberts, like Solicitor General Kagan, is one of the legal profession’s leading lights. He was also a former Supreme Court clerk and rose to become one of corporate America’s most skilled—and most handsomely compensated—litigators.
Yet for all his ability, Roberts has been incapable of neutrally applying the law to the powerful and the powerless alike. Two themes emerge from the chief justice’s opinions: Powerful corporations enjoy sweeping immunity from the law; and ordinary workers, children, consumers, and the elderly are on their own.
Consider the case of Diana Levine, a professional musician who lost her right hand and her livelihood after an unnecessarily dangerous drug was injected into her arm. A jury verdict and two court decisions held the drug manufacturer responsible for Levine’s injury, but Roberts joined an opinion claiming that drug companies enjoy almost total immunity from state law.
Compare this to the case of Don Blakenship, a wealthy coal baron best known for ignoring safety regulations until an explosion in one of his mines killed 29 miners last month. When Blakenship’s company lost a court case, Blankenship spent $3 million to elect a justice to the state Supreme Court he could count on to rule in his favor. That justice delivered exactly what Blankenship paid for, and Roberts responded with an opinion arguing that bought-and-paid-for judges are under no obligation to recuse themselves from their sugar daddies’ cases.
A free society depends on judges who will faithfully apply the same law to all parties. It is simply unacceptable to apply one set of rules to Diana Levine and another, more favorable set of rules to Don Blakenship. Solicitor General Kagan’s record fortunately suggests that she will be a very different justice than John Roberts.
Kagan spearheaded legislation when she was a senior policy advisor to President Bill Clinton that ensures that the Food and Drug Administration has the power to restrict tobacco companies from marketing their products to children, among other things. Kagan built a bipartisan consensus, working with conservatives such as Sens. Orrin Hatch (R-UT) and John McCain (R-AZ), around the common-sense notion that the law should empower the FDA to restrict marketing tactics such as running colorful cigarette ads in teen magazines and placing tobacco billboards right next to a school.
Yet when the Supreme Court got its hands on this consensus, it ripped it to shreds. The Court’s five conservatives, in a narrowly divided decision, adopted an implausible reading of federal law to restore the tobacco industry’s ability to sell cigarettes to kids. The Court’s tortured reading of the law literally held that it was illegal to regulate tobacco because tobacco is too dangerous to be regulated.
So General Kagan knows what it is like to be a policymaker who cares deeply about protecting the health and safety of the American people, only to see years of hard work destroyed by a Supreme Court more concerned with protecting powerful interest groups than with upholding the law. This understanding will no doubt lead her to be far more respectful of laws intended to protect ordinary Americans than the Court’s right flank.
Kagan’s White House experience suggests that she will faithfully apply laws intended to protect women like Diana Levine. But conservatives do have a right to expect that Kagan will be equally faithful in applying the law to men such as Don Blakenship. Kagan would be just as wrong to act as a liberal rubber stamp as a justice as Chief Justice Roberts is wrong to be an agent of the rich and powerful. Thankfully, her record shows that she is fully capable of impartially applying the law even when she disagrees with the law she is applying.
Kagan famously described the antigay “Don’t Ask, Don’t Tell” policy as “a moral injustice of the first order” while serving as dean of Harvard Law School. She even supported litigation intended to undermine this discriminatory policy. Yet as solicitor general, Kagan personally authorized numerous court filings defending "Don’t Ask, Don’t Tell" and other antigay laws such as the Defense of Marriage Act. The reason: Kagan has a legal duty as solicitor general to defend the laws Congress has enacted—even if she passionately disagrees with them. And Kagan has not wavered in acting exactly as the law requires.
Kagan will be no less faithful to the law when she slips on a black robe. Her experience teaches her that there are severe consequences when judges substitute their own values for the law’s judgment. And her record makes clear that she will faithfully apply laws cherished by progressives and conservatives alike. It will be a welcome change from conservative jurists convinced that justice should be dealt with a thumb on the scale.
Ian Millhiser is a constitutional attorney and a Policy Analyst with the Center for American Progress.
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