(updated below)
During the debate over Elena Kagan's Supreme Court nomination, those of us who opposed her selection argued that there was a substantial risk that she would join with the Court's four right-wing Justices more often than her predecessor, John Paul Stevens, did, and more often than other potential nominees (such as Diane Wood) would, and thus have the effect of actually moving the Court to the right (using "left" and "right" here in its conventional sense). The argument was not that she would be a Scalia clone; it was that her deliberate lack of a public record on judicial philosophy, combined with the isolated glimpses into her worldview that were available, made this an unnecessarily risky choice to replace Stevens, who had become the leader of the "liberal" bloc.
Particularly since she has so often recused herself on key cases, the record is still too incomplete to permit either side of this debate to claim vindication. There have, however, been several cases in which Kagan has joined with the Court's Scalia/Thomas/Alito/Roberts bloc in important areas, including her support for the narrowing of Miranda rights (the stalwart protection of which has long been a crown jewel of liberal jurisprudence) as well as her denial of review of disturbing death penalty sentences and an oppressive free speech ruling. In each of those cases, President Obama's other Court appointee, Sonia Sotomayor (whose nomination I enthusiastically defended), as well as Ruth Bader Ginsburg, were on the opposite side from Kagan.
The Supreme Court's health care ruling two weeks ago provides perhaps the most potent example yet justifying these concerns about Kagan. Although it was John Roberts' ideological apostasy that has received the most attention, Kagan joined with the Court's five right-wing Justices (as well as Stephen Breyer) to strike down one of the most important provisions of the bill -- its Medicaid expansion program -- on the ground that it was unconstitutionally coercive of the states (by threatening states with a loss of benefits for non-participation); on that issue, it was Sotomayor and Ginsburg in dissent. Politico's Josh Gerstein examines how little attention Kagan's vote has received from liberals:
In the landmark health care decision last Thursday, a Supreme Court justice broke with that justice's political roots, snubbed the justice's ideological fellow travelers on the court and confounded critics who had predicted the opposite outcome.
I refer, of course, to Justice Elena Kagan.
Kagan voted for portions of Chief Justice John Roberts's controlling opinion declaring unconstitutional a major provision in President Barack Obama's health care law, namely the Medicaid expansion.
While Roberts has been denounced by conservatives as an ideological heretic and turncoat for siding with liberals to uphold the individual mandate in the law, Kagan's conclusion that the law's Medicaid expansion was unconstitutionally coercive toward the states has triggered no similar wave of condemnation of her by liberals.
The absence of public outrage toward Kagan is particularly notable since she wasn't parting company just with her liberal ideological counterparts, but with the president who appointed her to the court and with the administration she served as Solicitor General immediately prior to taking the bench.
"Who knew that the Solicitor General thought the Medicaid expansion was unconstitutional?" said Kevin Outterson, a law professor at Boston University who filed an amicus brief urging the court to preserve the Medicaid provisions as written.
Asked how likely he thought it was prior to Thursday's ruling that Kagan would wind up taking such a stance, Outterson said: "Never in my wildest nightmares."
Gerstein includes a number of caveats, including the speculative theory that Kagan's vote on this provision might have been a strategic concession to induce Roberts to uphold the law in general. That, like anything else, is possible, though there's no evidence that this happened notwithstanding the avalanche of leaks that have come out of the Court regarding Roberts' vote. It was the Medicaid expansion provision that was the primary argument against liberal opposition to the law -- it's reckless to oppose a law that will give health insurance to 30 million people who cannot now afford it -- and this part of the Court's ruling, joined by Kagan, could jeopardize at least some of that expanded coverage.
This is more than an isolated instance. In Kagan's short time on the Court, it's beginning to look like a trend. She's issued some impressive (dissenting) opinions and has, more often than not, been a reliable vote with the "liberal" wing of the Court (neither of which is at all surprising). But her propensity to join with the Scalia-led bloc in criminal justice cases, along with this latest ruling, seems a harbinger of things to come. That's particularly true since one of the areas of greatest concern raised by her appointment -- her views on broad theories of executive power in the national security and Terrorism context -- has yet to be tested because she has recused herself from the bulk of cases in that area due to her advocacy for Obama's expansive theories when she served as his Solicitor General (recusals which resulted in several right-wing, pro-government rulings being upheld). Once she starts issuing opinions in that area, it will be much easier to assess the validity of the pre-confirmation concerns that were raised, but these preliminary signs -- while admittedly far from dispositive and sometimes even mixed -- suggest a willingness to join with the Court's conservatives in areas where Stevens (as well as the other candidates who competed with Kagan) would not have.
UPDATE: Elizabeth Warren, asked about the Medicaid ruling last week, said "she found it 'pretty shocking' that seven justices would create a “new limitation on congressional power to condition spending" and "roll[ed] her eyes when it is mentioned that her former colleague Elena Kagan was one of those seven." Slate's Dahlia Lithwick asserts that "liberals have been strangely silent" about Kagan's vote because liberals generally expect more betrayals from Supreme Court Justices than conservatives do and have a less clear idea of what to expect from Justices, but she argues that liberals are perhaps too indifferent to Court appointees ("instead of smugly chuckling at the ways conservatives have turned on their chief justice this week, liberals might also want to take a page from their playbook. The courts matter. How we talk about the courts matters. And who is on the courts matters as well").
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