Legal Commentary

Progressives have been debating whether Elena Kagan is liberal enough.  My view is that she is likely to be the next Felix Frankfurter?another professor from Harvard Law whose tenure on the Supreme Court is viewed today by many progressives as a disappointment. But Kagan, like Frankfurter, poses the question of what it means to be progressive.

Kagan and Frankfurter both come to the Court steeped in academic and theoretical debates about the nature of judicial review and the proper role of the Supreme Court.  In both the 1930s and today, the Supreme Court was very conservative.  As a result, the view of many liberal constitutional thinkers favored then as it does now judicial restraint rather than bold rulings aimed to radically alter society.  For Frankfurter, being a progressive meant cabining judicial discretion and deferring to the legislative branches?a natural response to the conservative judicial activism of the Lochner Court.  Many liberal academics today promote similar ideas in the name of judicial minimalism or popular constitutionalism?think Sunstein, Tushnet, and Kramer.  This, too, is a natural response to the conservative judicial activism of the current Supreme Court.

When law professors are appointed to the Supreme Court, they often bring with them their academic approaches to judging.  Justice Scalia brought with him the views that were, in the early 1980s, emerging as counterweights to the Warren Court: originalism and a forceful view of property rights.  Justice Breyer reflected the ?third way? approach that was just becoming popular in the mid-1990s among many liberals, one that recognized of the value of markets and the limits of government regulators to solve problems. 

If Kagan follows this path, she may disappoint those on the left who are looking for a bombastic Justice resembling William Brennan.  But the left isn?t uniformly favorable to Brennan?s assertive approach to constitutional interpretation.  Given the backlash that Brennan?s approach unleashed, many prefer a more restrained judicial role.  If she manifests this view in her rulings, Kagan may turn out to be very progressive?but in a particularly Frankfurter-ian way.