In Kagan, Court Gets A Real Wild Card

Today Elena Kagan becomes Justice Kagan, with a lifetime appointment on the Supreme Court of the United States.

She could well be there for a generation, and become one of President Obama’s longest-lasting contributions to the life of this nation.

As one of the youngest justices ever appointed to the Court, and a person with no known health problems, Elena Kagan could serve a long life on the bench.

Given that she just turned 50 in April, it’s not at all impossible that Justice Kagan could serve on the Court for a full generation of 40 years. If so, it could be somewhere around the year 2050 before Elena Kagan hands off the power she gains today as one of nine people with the unchecked power to declare the meaning of the U.S. Constitution.

In the next few years, the Supreme Court will decide some of the most consequential questions that this nation will ever face about what the Constitution means.

Does the federal government have the power to order people how to spend their own private money, as the Obamacare individual mandate requires? If so, then there are essentially no limits on federal power to control individual decisions.

Does the U.S. Constitution guarantee a right to same-sex marriage? If so, then the basic unit of human civilization will be forever redefined in this country.

The justices have recently engaged on a number of issues they’ve never had an opportunity to explore before now.

For example, in the past two years, the Court has (correctly) held that the Second Amendment secures an individual’s right to own a gun, and that this right is a fundamental right that trumps state and local laws, as well as federal laws.

Over the next decade, the Court is likely to decide another three or four gun-rights cases tracing the broad contours of this right, such as whether you can exercise this right outside your home, what sorts of guns are protected by this right, and how high of a bar legislatures must overcome to enact gun-control laws.

The Supreme Court is now also weighing in on issues that for all of American history the Court stayed out of, regarding those issues as outside the proper role of the judiciary.

These days, the Court is deciding what rights foreign wartime enemies have to challenge the U.S. military when those combatants are captured on foreign soil.

The Court is also allowing states to have standing to sue the federal government to force the feds to administer federal law in certain ways, and is also weighing in on economic policy issues like global warming. In doing so, the Court is claiming far more power than it ever has in the past.

These are just the issues before the Court today. No one knows what other issues will be raised twenty or thirty years from now. How will Justice Kagan attempt to use that power in the coming decades?

The big question that no one knows the answer to is exactly what kind of jurist Elena Kagan will be on the Court. She’s clearly left of center.

But will she be moderate-left, like Stephen Breyer? Will she be mainstream-liberal left, like David Souter (now retired)? Will she be far-left, like Ruth Bader Ginsburg and John Paul Stevens? Or will she be ultra-left, like Thurgood Marshall, for whom she clerked and whom she praised as the model of a Supreme Court justice?

We don’t know. That’s why her lack of a judicial record is such a concern.

Her record as a lawyer and a law school dean is hard-line liberal. Her legal record is full of liberal positions on expansive federal power, gun control, gay rights, and abortion.

A judge is not allowed to bring those personal beliefs to the bench. To what degree will she set them aside?

Or, like Justice Thurgood Marshall, will she actively embrace those beliefs in her judicial decisions? Over the next few years we’re all going to find out.

You read thousands of cases when you’re in law school. At the beginning of each one, you see the name of the judge or justice who wrote it. You learn who you agree with and who you don’t. You also note which justices, by virtue of how many years they serve on the Court, have a profound impact on constitutional law.

The longest-serving justice in American history is William Douglas, a committed liberal who served on the Court for 36 years.

His seat was filled in 1975 by John Paul Stevens, who served 34 years, and who is replaced today by Elena Kagan. Justice Douglas had a deep and lasting impact on the law, and now so may Justice Kagan.

By all accounts, Kagan is well-received in Washington. She’s good-natured and pleasant. She’s gregarious, enjoying spending time with other people around town.

And she seems to have the ability to completely disagree with someone but still genuinely like talking with them.

Unlike many other justices, to all appearances she enjoys life in our nation’s capital, and thus may well decide to serve the full length of her lifetime appointment.

Elections do indeed have consequences. Supreme Court appointments are among the most important decisions that any president can make, with consequences long outliving that president’s tenure in office, and many times outliving the president himself.

Now comes the moment of truth. Elena Kagan will take her seat on the bench as an associate justice on the Supreme Court.

We know less about her judicial philosophy than that of any Supreme Court nominee in decades.
And now we’ll all find out in a fashion that will go on for decades exactly what she believes the U.S. Constitution means.

If Justice Kagan sits on the bench for 40 years, what will the U.S. Constitution look like when she steps down in 2050? Those of us who live that long may find out.

Ken Klukowski is special counsel at the Family Research Council and a senior fellow at the American Civil Rights Union. He is the coauthor of the national bestseller "The Blueprint: Obama’s Plan to Subvert the Constitution and Build an Imperial Presidency."

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