When Elena Kagan won a coveted nomination for the Supreme Court last year, there was some grumbling among liberals. Many thought the most pressing need was for a politician on the court, someone with exposure to average Americans; with a sense of humor to smooth the edges of the court's ideological debates; and the persuasiveness to woo the court's swing vote, Anthony Kennedy, to the liberal side. The somewhat crusty Kagan, a former Harvard Law School dean who had just begun a term as solicitor general, didn't fit that bill. Her realm was academics, and her record — what there was — suggested she was something of a contrarian.
Alas, Kagan may be better news for liberals than many believed. She may lack the grace of a politician but, as Jeffrey Rosen points out in the August 18 issue of The New Republic, she brings one formidable skill honed in academia: She's an evocative writer. Rosen examines the case of Arizona Free Enterprise Club vs. Bennett, in which the 5-4 conservative majority struck down Arizona's public-financing scheme for elections. Chief Justice John Roberts, writing for the majority, declared that Arizona's plan to help candidates who agree to fundraising limits match the resources of wealthier candidates violates free-speech protections.
"There's just one problem," Kagan shot back in a dissenting opinion. "Arizona's matching funds provision doesn't restrict, but instead subsidizes, speech."
There may still be a need for a politician in the court, but a pithy writer, able to crystallize legal arguments into clear doctrines and conclusions, can have more influence. A clear dissent like Kagan's, ringing in the minds of judges throughout the federal system, paves the way for changes in the law. It seems like she's made a strong debut.