Published On: Wed, Jan 14th, 2015

Elena Kagan to Impact U.S. Constitutional Liberalism for Years to Come

Elena Kagan

The battle between the styles of U.S. Supreme Court justices Elena Kagan and Sonia Sotomayor could define the future of American liberal constitutional politics, Slate.com said.

Kagan can be thought of as “The Establishment’s Justice” due to her style on and off the bench that embraces and has been embraced by the legal elite, the website said.

At Harvard Law School, Kagan built relationships with faculty who would later assist her in obtaining a clerkship with Supreme Court Justice Thurgood Marshall. Kagan was also a law professor at the University of Chicago and Harvard, Slate.com said.

Kagan eventually became the dean at Harvard Law School. She was so successful in managing the faculty that another law school dean labeled her tenure the “Miracle at Harvard”, the website said.

During her time on the Supreme Court, Kagan has dazzled elite law school, university, and related audiences. She visited her undergraduate alma mater, Princeton, and reflected on attending her most recent alumni event there. She visits and teaches a class at Harvard Law School, Slate.com said.

In return, these audiences have embraced Kagan. After her first term on the Supreme Court, Rosen praised two of her opinions in the New Republic. Stanley Fish, a literary critic and scholar, praised “Elena Kagan’s Style” in the New York Times, the website said.

The question for the future of liberal constitutional politics is therefore whether these stylistic differences between Sotomayor and Kagan will conflict with one another or complement one another.

Kagan’s efforts as “The Establishment’s Justice” ensure that the liberal perspective on the Constitution convinces the elite that brings and decides constitutional cases before courts and works on constitutional issues in the other branches of government, Slate.com said.

Sotomayor’s efforts as “The People’s Justice” convince the other crowds. She persuades other members of the public, those who vote for and otherwise influence their elected representatives to understand the Constitution a certain way and nominate judges that think that way. This is a role that has not been played by liberal justices in the past generation, the website said.

On the other hand, Sotomayor and Kagan’s styles could conflict with each other. If we think of constitutional law as technical—more science than politics—Sotomayor’s populism might undermine any liberal attempts to articulate their vision of constitutional law as constitutional law. Each time Sotomayor talks about the Constitution in the simplified way, it undermines Kagan’s efforts to make her constitutional theory seem technically appealing to elite audiences, Slate.com said.

The question that will shape the future of the U.S. Constitution is whether the differences between Kagan and Sotomayor become a source of unique advantage or disadvantage, the website said.

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