Litigation

Panel: How Kagan Will Affect Supreme Court Hard To Judge

PHILADELPHIA - New U.S. Supreme Court Justice Elena Kagan may well be more moderate than retired Justice John Paul Stevens, and the court may miss Steven's leadership, panelists at the Sept. 20 Supreme Court Preview at the National Constitution Center here said.

 Justice Elena Kagan

"There is a saying around the courthouse that any time a new justice comes in, it makes a new court. . . . This is the second brand-new court in two years," noted moderator Lyle Denniston, who covers the Supreme Court for SCOTUSblog. "Now for the first time in the history of the court there will be three women justices."

Kagan, 50, joins Justices Ruther Bader Ginsburg and Sonia Sotomayor when the court begins its fall term on Oct. 4. She was confirmed to replace Stevens on Aug. 5. Sotomayor joined the court last year, replacing Retired Justice David H. Souter.

Panelist Geoffrey Stone, a University of Chicago Law professor and a 2010-2011 visiting scholar at the Constitution Center, said he has known Kagan for 20 years and hired her as an assistant professor at the University of Chicago Law School. He said that although she's perceived as a liberal, she has not made any significant pronouncements on major issues.

"I don't have a feel for what she'll be like on the court," Stone said, adding that she may likely be moderate. "She's rarely actually put herself out in any significant way. . . .

"Only time will tell. I think that for the most part, in terms of votes, Kagan will vote largely the same way that Stevens would have if he stayed on the court, in most cases," Stone said. "In terms of the dynamics within the court, in having three women, I have no doubt that adding to the mix of conversation people who are diverse from the norm, whether it be in faith or gender or race or religion or economic background, that has a distinct effect.

"In general, it's a pretty good rule of thumb, the more presence you have of people who are of the same sex, the more comfortable they are in speaking out," he added.

Panelist Helgi Walker, a partner at Wiley Rein LLP and co-chair of the firm's appellate practice, disagreed on the last point.

"I'm not sure it matters at all," said Walker, the only female member of the panel. "I think what matters is the judicial philosophy of that particular individual. 

"Justice Kagan may well be somewhat more moderate than Justice Stevens, who was clearly the most liberal member of the court and last year's term he joined the majority less than any other justice," Walker added. "So, she may be somewhat moderate."

"It may well make a difference that John Stevens is no longer there," Denniston said.  "This year, John Stevens re-emerged as a leader within the court. It is at least my perception that this court could now use some additional leadership.

"The chief justice [John G. Roberts Jr.] is a very young gentleman with very little experience as a judge and I think the court will miss John Stevens, at least in the short term," Denniston added.  "It probably enhances Anthony Kennedy's authority now and leadership possibilities within the court."

K ennedy, who will likely have the majority-making fifth vote in many key cases, tends to be conservative, but not predictably so, Denniston said.

"I think the court . . . is going to have to feel its way to see who will emerge in a leadership role," Denniston said.  "Justice Ginsburg, for example, has never seemed to aspire to influence her colleagues.  She tends to her own approach to the law and doesn't seem to be interested in doing what's called 'massing' the court. . . ."

Kagan is the only sitting justice with no prior experience as a judge, but has a "recognized reputation as a conciliator," Denniston wrote in a program for the panel discussion.

More than 240 people attended the Constitution Center's annual Supreme Court Preview.

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