Elena Kagan’s Potential Drift on Race


Justice Kagan is primed for a multi-year drift on race.  She’s already shown signs of breaking with the left-wing orthodoxy on the subject, and I think that at some point, she will cast a conservative swing vote on a racial issue that will drive a wedge between her and Sonia Sotomayor and will flabbergast liberals who haven’t been watching the Court closely enough.

Some liberal legal groups have always been scared of Justice Kagan on racial issues.  During the Clinton administration, she did not embrace some racial causes that liberals felt were important.  Prominent groups of black and Hispanic lawyers were, at best, lukewarm about her nomination.  See Washington Post, Civil Rights Groups ConcernedBut, she made it onto the bench, and so far she has largely voted the way she was “supposed” to on high-profile cases that lead the newspapers.

Kagan, so far, hasn’t really had many blockbuster race moments. We don’t have any ideas from the two most important race cases the Roberts Court has addressed during Kagan’s tenure:  Fisher v. University of Texas (affirmative action at Texas) and Schuette v. BAMN (Michigan referendum prohibiting use of race for college admissions).  Kagan didn’t take part in either of these, because she was presumably involved with them in her prior role as SG.  She likewise isn’t taking part in the Fisher-part-2 decision that will be coming sometime in the next ten days.  So we aren’t going to know for a while — at least this term.

Nevertheless, Kagan’s language, and some other subtle clues, have indicated she isn’t a doctrinaire liberal on racial matters.  For one, she only occasionally uses the orthodox terminology.  Although Kagan has followed Justice Sotomayor’s lead on oral arguments, referring to those who are in the country without permission as “undocumented” rather than “illegal,” see United States v. Texas, Tr. of Oral Arg. at 84, she has not followed Justice Sotomayor’s lead in written opinions.  As I recently wrote, her opinion in Luna Torres is stark – Kagan uses the term “alien” 11 times and never uses the term “noncitizen.”  Sotomayor, in her dissent, uses “noncitizen” exclusively.  This juxtaposition is relatively jarring as you read the opinion.

On Monday, the schism-feeling got a little more pronounced.  The Court held that a police officer may unconstitutionally stop a suspect, check to see if he has an outstanding arrest warrant, and if he does, proceed with the arrest (because hey, why not).  The Court’s three women dissented.  Justice Sotomayor wrote a legally accurate, but also deeply personal, opinion.  She explicitly acknowledged that Part IV of her dissent – the part with the truly stinging critique – was “[w]riting only for myself, and drawing on my professional experiences.”  Strieff, at *9-10 (Sotomayor, J., dissenting).  She spoke of the “degrading” experience of a pretextual stop, the “indignity” of activist policing, and “the talk” that “black and brown parents have given their children” for decades about avoiding police entanglement. Id., at *10-12.

Justice Ginsburg joined all of Justice Sotomayor’s dissent, except for this deeply personal fourth part.  Justice Kagan didn’t.  She wrote her own opinion, that while employing her signature colloquial style, had none of the passion or personalization of Sotomayor’s.  As Matt Leipold put it, “it was like she wanted to make the point that this was a simple legal argument that didn’t need all the fireworks.”

I think Justice Kagan doesn’t see race the way that Justice Sotomayor – or many political liberals – see it.  Or at least she doesn’t see the “personalized experience” aspect of race as compatible with the judicial role.  She’s already drifted on cases in key areas, like 2254 habeas deference (White v. Woodall) and criminal statutory construction (Yates v. U.S.).  In so doing, she’s demonstrated that she has a serious view of the responsibilities of a judge and of the rules that separate the judicial from the experiential functions.  See also, e.g., Kimble v. Marvel Entertainment, Inc. (laying out nuanced and toothy view of stare decisis).  Justice Kagan, I suspect, thinks judicial opinions should be largely free of the kind of learned, lifetime judgments that Justice Sotomayor thinks are essential.

Look for Justice Kagan to drift on issues of race.  I don’t think it’ll be in a school case – or at least that isn’t the ideal presentation; Kagan was a muscular dean of Harvard Law who would want to afford other deans the kind of latitude she had to shape an institution.  It’ll be some sort of Adarand-redux case – an affirmative action program in a business setting that tees up an overreaching statute.

The left was always worried about Kagan.  So far the signs have been there if you’re looking, but she’s never had the truly high profile break.  It’s going to be this, and it’s coming.

Elena Kagan’s Potential Drift on Race