an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I'm participating in a Federalist Society online discussion about the nomination. I thought readers here might be interested enough to justify crossposting my comments here:
No one Justice can embody all the diverse legal experiences relevant to the Court's work. Ideally, some Justices would have trial experience, including criminal trials. Some Justices would have legal experience in the states. Other Justices, from private practice, would have legal experience with the private sector. Still other Justices would bring the perspective and knowledge of legal and policy issues that particularly affect distinct regions of the country, such as a Justice from the western United States who might understand issues involving management of the federal public lands, or Indian law, or water law, that play a more central role in the west. Yet other Justices would have had legal experience understanding the workings of the federal government. And others would have had prior experience with the craft of judging itself.
Seen in this broad perspective, Elena Kagan would bring two bodies of important legal experience to the Court. Neither has been sufficiently appreciated in the initial reception to her nomination, I think, though both are central to the Court's work. First, she spent about four years as a lawyer in the White House, at precisely the point at which the relationship between Congress and the executive branch comes to a head. Often, she had the role of navigating, with others, between Congress and the White House over legislation. Not only does she have an intimate understanding of how the White House functions internally, she should have a sophisticated knowledge of the "dance of legislation," and of all the messy negotiation, compromising, and dealmaking that goes on between the executive and legislative branches. This experience also includes understanding the relationship of the White House to the administrative agencies. All this legal experience is tremendously important to the Court's work. A good deal of the Court's work deals with exactly these kind of issues (rather than the cultural issues that attract so much more attention): the relationship between Congress and the executive branch; the interpretation of statutes that have emerged from the joint legislative-executive process of putting laws together; the role of agencies in implementing legislation. I can think of few positions in the government that would provide better understanding, not just of the law, but of the actual dynamics of power and institutional relationships that inform the lawmaking and law implementation process, than the position in which she served. When I clerked at the Court for Justice Marshall, from 1984-85, I recall that other Justices would frequently turn to him for insight concerning issues involving the trial process, since he had more trial experience than anyone else on the Court. Justices similarly turned to Justice Powell for perspective on issues concerning business, given his experience with those issues.
Some of the current Justices have also had experience in government. But for the most part, they saw different institutions and served in different roles than Kagan. The only one who served in the White House, like Kagan, is Chief Justice Roberts. Whether or not Justices would turn to Elena Kagan for insight concerning how parts of the government actually function (or fail to function) on various issues – and I imagine that some would – she would bring that experience to bear on how she applies the law to these critical areas of the Court's work.
The second area of her legal experience that would benefit the Court, and that has also been underappreciated thus far, is the 15 or so years she spent as a legal academic. I do not mean her administrative work as Dean of the Harvard Law School, but the 15 or so years of teaching, reading, thinking, and reflecting on the law with others, that has been central to her professional life (she continued to teach while serving as Dean). She has spent much of her career studying bodies of law that are also central to the Court's work: administrative law, constitutional law, civil procedure and, to a lesser extent, labor law. Good academics have certain unique contributions they can make to the judicial process, as well as certain potential limitations.
Those who spend years in practice, or even as judges, can develop a grasp of the intricacies of bodies of law they work with, but they often lack the time (and sometimes the inclination) to understand areas of law in a more comprehensive, or deeper, way. Academics are in a position to be able to see the broader architecture of bodies of law; to understand the deep historical development of that law, to recognize tensions and deep inconsistencies in a body of law that create problems for applying it; or to recognize how problems in one area of law connect to issues in other areas. Anyone who has read Elena Kagan's writing on administrative agencies or the First Amendment knows that exactly these qualities are abundantly on display in her writing. Justice Scalia was not a particularly prolific writer as an academic when he joined the bench. But he obviously had deeply thought through his views on a whole range of issues, like how to approach the interpretation of a statute or the Constitution, or the role of crisp, bright-line rules in developing doctrine, or the substance of what doctrine ought to be in areas like administrative law, in a way that has given him a powerful intellectual presence on the Court. Similarly, Justice Breyer's years of teaching and studying administrative law have helped him become a central force in shaping doctrine in that area. Being steeped in legal thought in the way good academics can be is not necessary, of course, to being a good or significant Justice. But the Court benefits greatly from someone who can bring this depth of learning to important bodies of law, to be combined with the different insights Justices from other backgrounds will have.
To be sure, there is a risk that academics can be too pie-in-the-sky to be good judges – too invested in fancy theories for their own sake, with little appreciation for how those ideas would play out in the actual contexts to which they will be applied. But no one, as far as I'm aware, has suggested there's any risk of that with Elena Kagan. And indeed, this is where the marriage between her years of practical experience at the center of government and her academic immersion in the law, including the law that regulates actions of the government, is very strong: the concrete experience and the deep learning should re-enforce and temper each other.
Thus, most of the discussion about the fact that she does not have the experience of having been a judge seems misplaced (the prior judicial experience of some of the current Justices shouldn't be overstated, either: Justice Thomas had been a judge for one year, Chief Justice Roberts for two, when they were nominated, which is more or less comparable to Elena Kagan's one year as Solicitor General). As I began, not everyone on the Court can embody all the legal experiences the Court ideally ought to have. But in many areas of the law central to the Court, Elena Kagan can draw on two powerful bodies of legal experience, as a lawyer at the intersection of the executive and legislative branches, and as a teacher, analyst, and student of the law, that would be of undoubted benefit to the Court as an institution and to the development of the law. Posted
by Rick Pildes [link]