Kagan takes on conservative majority with rhetorical firepower

Sat, Apr 7, 2012, 01:00

The performance of the US Supreme Court justice in her first term has energised the liberal wing, writes JOAN BISKUPICin Washington

DURING THREE days of arguments over US president Barack Obama’s healthcare plan, Supreme Court Justice Elena Kagan put on a display of rhetorical firepower, reinforcing predictions that the newest justice is best equipped to take on the conservative, five-man majority controlling the bench.

The strong views and persuasive tactics of the administration’s former top lawyer could affect the fate of the healthcare overhaul, as well as decisions in other ideologically charged issues that will come before the court, such as same-sex marriage.

Kagan’s sturdy advocacy was evident to law professors and to lawyers who practice before the court during her first term. But the healthcare debate has offered her a more prominent platform with bigger stakes. She pressed her argument as ardently as any lawyer who stepped up to the lectern.

Kagan, Obama’s second Supreme Court appointee, who joined the bench in August 2010, has energised the four-member liberal wing of the nine-member court. She is a keen strategist and can also match wits with Chief Justice John Roberts and Antonin Scalia, the longest-serving conservative on the bench.

Her role is distinct from that of Justice Anthony Kennedy, the conservative who is most likely to swing and occasionally permit the other side to prevail. Rather than casting a crucial vote, she lends a critical voice that could make the case for liberals within the court and beyond.

Her approach, seen in her early months and brought vividly to the fore during the healthcare case, suggests she may be adopting some of the liberal passion of her mentor, Thurgood Marshall, for whom she clerked. He also served as a solicitor general, during the Lyndon Johnson administration, before becoming the first African-American justice on the high court.

Marshall, whose tenure spanned 1967-1991, was, with the late Justice William Brennan, a standard-bearer for a liberalism that has all but disappeared from the federal bench. They opposed the death penalty in every case, consistently boosted defendants’ rights and favoured broad-scale solutions for past racial discrimination. They sought to give judges a strong hand in remedying social policy disputes.

Kagan is unlikely to embrace that activism of a bygone era. Yet her approach could lead her to oppose efforts by the conservative majority to reverse past rulings on race-based remedies, or break new ground on gay rights.

Kagan’s fiercest dissenting opinions on behalf of the liberals have so far come in ideologically charged cases. In an Arizona campaign finance dispute, she wrote that while the conservative majority said it had found the “smoking guns” at the centre of the case, “the only smoke here is the majority’s, and it is the kind that goes with mirrors”.

In the months preceding the court’s healthcare hearing, conservative groups and prominent Republicans, including US Senate Republican leader Mitch McConnell, questioned whether Kagan should sit on the case because she had worked as a high-level lawyer under Obama when the healthcare law and strategy for its defence was being developed.

The overhaul, which includes a mandate that most Americans buy insurance by 2014, is intended to bring coverage to more than 32 million uninsured people in the United States. If anyone had thought Justice Kagan might pull her punches during arguments because of the criticism she faced for not recusing herself, they were wrong. She defended the Obama healthcare plan with a vigour that might have been expected if she were still Obama’s first solicitor general.

Last week’s healthcare arguments illustrated Kagan’s robust approach and her potential to speak for the left. She jumped in when administration lawyers faltered, responded to conservative justices’ questions about the Obama position, and came on strong when attorney Paul Clement, representing 26 states challenging the healthcare law, was at the lectern.

During arguments premised on the notion that everybody will eventually need medical care, the lead lawyer for the state challengers said: “The government can’t say that everybody is in that [healthcare] market. The whole problem is that everybody is not in that market, and they want to make everybody get into that market.”

Kagan replied: Wasn’t that “cutting the baloney thin? Health insurance exists only for the purpose of financing healthcare. The two are inextricably interlinked. We don’t get insurance so that we can stare at our insurance certificate. We get it so that we can go and access healthcare”.

Kagan has made friends with colleagues on both sides. The Manhattan native, who as dean of the Harvard law school brought in more conservative professors to a campus dominated by liberals, has taken up skeet shooting and pheasant hunting with Scalia, her ideological opposite.

More than her votes, it is her opinions – mainly in dissent – that have made Kagan stand out. She took the lead to protest a 5-4 decision in an Arizona case allowing state tax credits that benefited religious schools, insisting the decision “damages one of this nation’s defining constitutional commitments”, that of religious liberty.

On the last day of the 2010-11 term, Kagan led dissenters in a separate Arizona case, as the majority invalidated a state law that gave extra funding to political candidates who used the public-finance system rather than relied on private backers.

– (Reuters)