April 27, 2010


A Case for Kagan (Lawrence Lessig, April 26, 2010, Huffington Post)

The Kagan I know is a progressive. But we should be careful about precisely what that term means today. Constitutional law has been affected fundamentally by the work of scholars and judges such as my former boss, Justice Scalia. Their influence has plainly reoriented constitutional law to ask not, "What would be the best answer?" to any particular question, but instead, "What is the answer of fidelity?" Or again, what is the answer that most faithfully applies the law of the different generations of our Framers -- the Founders, the Civil War Republicans, and the Progressives at the beginning of the last century. I'm not sure that "liberals" on the Court have always accepted this framing. Certainly Douglas and Holmes didn't feel themselves so constrained. And I can see how many wonder whether some of the more prominent liberals since the Warren Court have accepted this framing either. But among those who do accept that the charge of a judge is interpretive fidelity, there are progressives and conservatives. Diane Wood's opinions plainly mark her as a progressive. Justice Thomas is plainly among the conservatives. The Kagan I know is with Wood in her views about what the constitution means. She is with both Wood and Thomas in believing that it is the Framers (and again, every generation of them) whose views, as expressed in the text of the Constitution, a judge should apply.

There are questions about whether Kagan is really the progressive I describe. I will address those questions below. But if you'll assume with me for the moment that she is, then I believe there's an aspect to Kagan's experience that sets her apart from others on the short list. Kagan has had practical strategic experience. Her most important work over the past two decades has been in contexts where she has had to move people to see things as she did. And through that experience, she has developed a sixth sense for the strategy of an argument. She matches that insight with a toughness that can get what she wants done. That doesn't mean triangulating. It doesn't mean "compromise." It means finding a way to move others to the answer you believe is right.

This is the single feature the liberal side of this conservative court lacks most. Even Justice Stevens was too quick to run off to a corner to write his universally brilliant dissents from insane majorities. Breyer too too often seems content in his law professor way to write an opinion that sounds good when read aloud to himself, but in light of the evolving jurisprudence of the Court, is tone deaf to the view of others. Too many of our progressive colleagues swing for the bleachers of history, rather than victories now. Too many are content with simply knowing that their liberal law professor friends are busy praising their opinions in constitutional law classes rather than fighting to find a way to split the ideologues on the right with their own principles and rhetoric.

Again, I'm not talking about triangulating. The point is not that we need someone who knows how best to compromise. The point instead is that we need a justice with the energy and strength to use the legal materials provided by the other side to advance the right answer.

I felt this point most acutely in a case I argued and lost in the Supreme Court, Eldred v. Ashcroft. The issue in that case was Congress' power to extend the term of existing copyrights. We argued (and historians in the case confirmed) that these repeated extensions (11 times in the prior 40 years) were inconsistent with the Framers' understanding of a clause that gave Congress the power to grant copyrights "for limited times." Nonetheless, seven justices upheld the extension, with the five conservatives sitting silent in the face of an originalist argument about how Congress was exceeding its enumerated powers -- just the sort of argument that seemed to excite those 5 conservatives, at least when the underlying issue was, well, conservative.

Stevens and Breyer dissented. But neither even tried to engage the conservatives on the other side. Stevens can be forgiven for that; after thirty years, a justice has the right to simply state his or her beliefs. But Breyer had no such excuse. His opinion read more like an article in an economics journal: brilliant, and right, but adopting a method of reasoning that literally no one else on that Court was going to follow. No doubt, if you think you're writing for history, that's fine. But if you're trying to leverage argument to get 5 votes for the right answer, this sort of opinion is simply self-indulgence.

Breyer's weakness points to a general weakness in appointing law professors to high courts.

Posted by Orrin Judd at April 27, 2010 8:48 PM
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