Professor Adam Winkler takes issue with my suggestion that, if confirmed, Elena Kagan will likely become one of our very most aggressive justices. He writes:
Will Kagan really become, as Paul Mirengoff suggests, “one of our very most aggressive justices”? I doubt it and suspect she’s likely to disappoint those on the left searching for a bold, activist justice in the mold of William Brennan. She’s a progressive, but will likely turn out to be more like Felix Frankfurter than William Brennan.
Like Frankfurter, another Harvard Law professor, Kagan’s thoughts about judicial review are likely shaped by the experience of living under what progressives view as an activist court led by conservatives. Frankfurter, one of the founders of the ACLU, recognized that the appropriate role of the Court is to be restrained and more or less deferential to the elected branches. This was the dominant progressive view of the Supreme Court in academia in the 1930s and Frankfurter brought it with him to the Court. When activist liberals like Hugo Black came to dominate the Court in the 1940s, Frankfurter couldn’t bring himself to go along with many of their rulings. He understood that restraint was something both liberals and conservatives should follow.
Today, the most influential progressive understanding of judicial review also emphasizes judicial restraint, usually under the terms of “minimalism.” Many academic progressives have realized that the assertiveness of the Warren Court set back liberal causes in many ways–most importantly, by stimulating a serious backlash that led to the rise of a strong conservative legal movement and contributed to the election of Nixon, Reagan, and the Bushes. Kagan, who has exemplified cautious moderation in her writings and elsewhere in her career, almost certainly realizes this. For the long run health of progressive ideals, it’s essential that she not be “one of our very most aggressive justices.”
Her remarks about Barak shouldn’t be taken to suggest otherwise. She was a dean introducing him at an event. He was an honored guest and, as any law professor will tell you, deans gush at these things. That’s part of their job. She also gushed about Scalia when he visited Harvard. In fact, her gushing shows that she understood her proper role as a dean. She’ll likely bring an understanding of her proper role as a judge to the Supreme Court too.