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How to move the Court


Earlier today, I called Walter Dellinger, who served as the head of Clinton's Office of Legal Counsel and, from 1997-1998, his solicitor general, to ask about his impressions of Elena Kagan over that period. I'll wrap those insights into a piece I'm doing for tomorrow. But he made another point that's worth drawing out.

"There is a misunderstanding about what moves the Supreme Court to the left or the right," Dellinger told me. "Some people see it as a see-saw where the person most to the left tilts it furthest to the left. That's a dubious proposition, at best. It could be that someone who is more center left could move the court further towards her position than someone who's further left."

This idea is commonly stated in terms of Anthony Kennedy: A judge's influence on the court isn't dependent on her personal politics so much as her skill at changing everyone else's personal politics. A judge who votes center-left and convinces Anthony Kennedy to do the same will move the court much further left than someone who is a more liberal vote but leaves every other vote unchanged.

At least, that's how the idea is normally presented. But Dellinger said that was a "short-sighted" way to understand the court. "Elana Kagan is the youngest member of the court and it's possible that before her time is over not a single one of the present justices will be on the court. So you're looking for someone who will be shaping the court for a long time. That's not just about Anthony Kennedy. There could be eight different justices by the time Kagan is finished. And so what is useful is someone who can shape solutions to complicated legal problems that draw a consensus on the court and can deploy that skill on a court whose composition may be vastly different than what it is today."

That's correct, of course. It's just hard to measure. Dellinger pointed at Kagan's success at running Harvard Law School as proof that she can bring an array of different perspectives together and convince them to move forward (if my reporting on Kagan has convinced me of anything, it's that the pre-Kagan incarnation of Harvard Law School was the unhappiest place on Earth). And maybe that's right! But it is comparing apples to oranges. On the other hand, comparing anything to the Supreme Court is comparing apples to oranges.

Photo credit: By Darren McCollester/Getty Images

By Ezra Klein  |  May 10, 2010; 5:22 PM ET
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Of course, the Kagan as persuader argument only works as long as she votes center left. What if she is Obama's Souter, and starts voting center right and persuades Kennedy in that direction?

When one nominates a Supreme Court Justice on the basis of her persuasive abilities, one would hope that there is a record by which to base a nominee's future voting pattern.

Unfortunately for those left of center, Obama has just give teabaggers and conservatives a lotto ticket that they may be able to cash in, in the future, should she turn out to be a center-right Justice.

Posted by: jc263field | May 10, 2010 7:19 PM | Report abuse

I read a wide variety of conservative websites. None of them think there is the slightest chance Kagan will be center-right. All are opposed.

Posted by: Kevin_Willis | May 10, 2010 8:55 PM | Report abuse

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Posted by: itkonlyyou52 | May 10, 2010 11:34 PM | Report abuse

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