Elena Kagan and The Supreme Court--Are the Times A-Changing?

Yesterday the Senate confirmed the nomination of Solicitor General Elena Kagan to be the fourth woman in history to serve on the U. S. Supreme Court. During the confirmation process, there was much discussion about her lack of previous judicial experience, her judicial philosophy, and her decision while dean of Harvard Law School to ban military recruiters from on-campus interviews because she believed "don't ask, don't tell" to be in violation of the school's anti-discrimination policies. Some even attempted to derail support for her by implying that she was a lesbian, although how that could be relevant to her qualifications to serve as a Supreme Court justice was never spelled out. (Similar whisper campaigns were waged against the nominations of other capable, single women in the past including Janet Reno--President Clinton's Attorney General, and Sonia Sotomayor--Obama's previous appointee on the Supreme Court.) When all was said and done, however, there was no serious attempt to block Kagan's nomination, and her appointment was confirmed by the Senate by a vote of 63-37. She is expected to be sworn in on August 7.

So does this change things?

Well, for the first time in history, one-third of the justices on the Supreme Court are now women: Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. It took nearly two hundred years for there to be one woman, appointed to the Court. To have three at once shows how much things have changed since the days before President Ronald Reagan appointed Sandra Day O'Connor to the Court in 1981. As recently as the early 1970s, many law schools discriminated against women in the admissions process, yet today there are only slightly more male law school matriculants than female, and three women sit at the pinnacle of the profession. Will this change the Court's decisions? Probably not. Studies show that only in the area of sex discrimination can any difference be discerned between the judgments of all-male federal court panels and those that include a woman.

But there is more. There are now three Jewish justices on the Supreme Court: Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan. The first Jewish justice, Louis D. Brandeis, was appointed in 1916 by Woodrow Wilson, and only four other members of the Jewish faith sat on the court before Ginsburg was appointed by President Clinton in 1993. But there is no reason to believe that these justices have based their opinions on their faith any more than the six Catholic justices now also serving on the Court. Incidentally, there are now no protestant justices on the Supreme Court for the first time in history. Considering that it used to be an all-protestant, all-male body (with the first Catholic appointed in 1836), this is a change, indeed.

Elena Kagan, born in 1960, is now the youngest justice on the Supreme Court. She replaced its oldest justice, John Paul Stevens, who was born in 1920. Now five of the justices are Baby Boomers: Clarence Thomas, Samuel Alito, Sonia Sotomayor, John Roberts, and Elena Kagan. Age and judicial philosophy are not linked, however. Thomas, Alito and Roberts are conservatives; Sotomayor and Kagan are liberals.  And while Kagan might be more comfortable with a smart phone that her predecessor, her philosophy could well prove to be very similar to his.

All in all, it appears much has changed. But I think we cannot expect to see those surface changes result in a change in the Court's decisions. After several decades--starting in the mid-twentieth century--of the most liberal Supreme Court in history, the Court in the twenty-first century has the appearance of becoming one of our most conservative with a strong conservative bloc of five: Chief Justice Roberts, and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito. The liberal bloc of the Court consists of Justices Ginsburg, Breyer, Sotomayor, and presumably Kagan (although she has yet to write a judicial opinion). Interestingly this bloc includes all of the women and all of the Jewish members of the Court. Unless Kagan, a renowned consensus builder while dean of Harvard Law School, builds a more moderate consensus on the Court, it appears that we can expect a continuation of the very conservative Roberts Court for many years to come.

Plus ca change, plus c'est la meme chose.