Tuesday, July 05, 2011

Justice Kagan Channels Her Inner Scalia

By Mike Dorf


In my first Verdict column, I discuss last week's Supreme Court decision in Arizona Free Enterprise Club’s Freedom Club PAC ("AFECFCP") v. Bennett, in which the Court--5-4--struck down Arizona's system of public finance for elections. I note how, despite the fairly sharp disagreement on how to apply the Court's precedents to the Arizona law, the majority and dissent agree on a crucial premise: that campaign finance laws may not "level down" in an effort to ensure political equality. (Note that as a new feature of Verdict, if you'd rather absorb my column while driving to work or otherwise multitasking, you can listen to it as a podcast.)


Here I want to take a closer look at the tone of the dissent. When Justice Kagan was nominated to the Court last year, a number of liberal commentators expressed the hope that she might become a kind of "liberal Scalia"--someone who would go toe-to-toe with the perceived intellectual leader of the Court's conservative wing. It's still too early to tell whether that hope will prove justified, but some of what Justice Kagan wrote in her AFECFCP dissent suggests that in at least one important respect she is taking Justice Scalia as her model.


In particular, Justice Kagan's AFECFCP dissent is hard-hitting, punchy and sarcastic.  Consider this excerpt, in which she explains why Arizona's public finance system does not, in her view, penalize candidates who privately finance their campaigns:
[P]rivately funded candidates may well find the lump-sum system more burdensome than Arizona’s (assuming the lump is big enough). Pretend you are financing your campaign through private donations. Would you prefer that your opponent receive a guaranteed, upfront payment of $150,000, or that he receive only $50,000, with the possibility—a possibility that you mostly get to control—of collecting another $100,000 somewhere down the road? Me too.
Later we see more of the same, with her tone bordering on rudeness. She writes:
If public financing furthers a compelling interest—and according to this Court, it does—then so too does the disbursement formula that Arizona uses to make public financing effective. The one conclusion follows directly from the other. 
Except in this Court, where the inescapable logic of the State’s position is . . . virtually ignored. The Court, to be sure, repeatedly asserts that the State’s interest in pre-venting corruption does not “sufficiently justif[y]” the mechanism it has chosen to disburse public moneys. Only one thing is missing from the Court’s response: any reasoning to support this conclusion. 
To my mind, that's a step too far. It's the sort of calling out of one's fellow justices that, when engaged in by Justice Scalia, has been thought to alienate colleagues. Here is yet another example from Justice Kagan's dissent:
[T]he majority claims to have found three smoking guns that reveal the State’strue (and nefarious) intention to level the playing field. But the only smoke here is the majority’s, and it is the kind that goes with mirrors.  
Is Justice Kagan within her rights in these passages? Sure, as is Justice Scalia when he writes similar prose. But in both instances, it comes across--at least to me--as mean-spirited and a little bit immature.

8 comments:

michael a. livingston said...

I agree and disagree. Sure it's a feisty opinion. But isn't that what liberals need if they're going to take on Scalia effectively? To me, as a conservative, it seems like a one-way show, with Scalia articulating an aggressive, coherent jurisprudence and the remaining Court liberals responding in a somewhat piecemeal, half-hearted way. If nothing else it's an example of how a lifetime job changes people: weren't we saying just yesterday that Kagan was too cautious and consensus-oriented to make an effective justice?

Publius the Clown said...

As someone who agrees with Justice Scalia and his conservative colleagues more often than I agree with Justice Kagan and her liberal colleagues, I agree with Professor Livingston. I don't see anything wrong with bluntly calling out the majority for not backing up its result with reasoning. And doing so in an entertaining way will only help this cause.

When the Court deserves to be dressed-down, it should be. Justice Scalia has done this at times when the Court richly deserved it (see, e.g., Scalia's dissent in Lawrence v. Texas, which turned me--a social liberal who favors gay marriage as a matter of policy--into a fan of Justice Scalia when I read it in law school).

There's no reason that Justice Kagan shouldn't do this when she thinks the majority deserves it. (I'm not saying that she's either right or wrong in AFECFCP, which I haven't read.) I don't think it's mean-spirited or immature.

Whether or not it will alienate colleagues is a separate question that's tactical and empirical, and depends on circumstances.

AF said...

I would distinguish between hard-hitting and punchy on the one hand, and sarcastic (or rhetorical) on the one hand.

Pulled punches and circumlocution may be effective diplomatic tactics (I don't know whether they are or aren't on the Court) but there is little else to recommend them. From the point of view of effective communication to the lower courts, the bar, and the public, clear and punchy are good. If the dissent considers the majority to have repeatedly made an assertion without providing any reasoning to support it, I don't see why she shouldn't write that "Only one thing is missing from the Court’s response: any reasoning to support this conclusion."

On the other hand, sarcasm and rhetorical flairs are unnecessary and often misfire. The "Me too" comment does strike me as off -- though not so much that it's rude as that it seems inappropriately informal for a Supreme Court opinion. Similarly, there is no need to talk about the majority's "smoke" (particularly since it evokes the image "blowing smoke" which is more of a personal insult than the "smoke and mirrors" image that Kagan expressly refers to).

Crispian said...

I'm tempted to agree with you, Prof. Dorf. The Court will have competing judicial philosophies but that does not mean they need to be expressed in a juvenile fashion.

I disagree with Mr. Livingston that liberals respond in a "piecemeal, half-hearted way." Justice Ginsburg is more than capable of fervently and coherently expressing her judicial views. And opinions are not primarily about responding to the other Justices in any event.

There is the talk of how increasingly polarized we are as a country and there appears to be some desire for this trend to take over the Court as well (not that it hasn't to some extent via the nomination process).

It strikes me that 99% of Scalia's barbs are direct criticisms of specific points, rather than a rhetorical question followed by a snide "Me too" as Kagan offers. And it seems a class apart to criticize liberal Justices for making ad hoc judgments based on their say-so (as Scalia so often does) and saying that there is no reason whatsoever (as Kagan does). The latter is simply dismissive.

Certainly Scalia can be heavy-handed at times. But at least he is engaged in the debate and direct about it. But his mode of writing should not be the norm. Scalia doesn't 'win more' for being caustic. The Supreme Court should not be a political arena.

The recent opinions from the WI Supreme Court upholding Walker's budget is not a model for future jurisprudence for the Supreme Court (nor are its backroom antics). while I cheered the disposition of that case, I thought the majority was too glib in its analysis (for not differentiating apparently conflicting cases) and the dissent went way overboard. The solution was not for the majority to mirror the dissent. And the "solution" to Scalia is not increased polarization of the Supreme Court.

Joe said...

I think Kagan has potential to have a down to earth style which will be appreciated but overall I don't appreciate the combative tone of various opinions, which seem to make things too personal.

Some of her asides were unsavory here but hopefully she will learn to polish her approach without changing the good aspects.

---

As a social liberal, I wasn't convinced by Scalia in Lawrence, but then, unlike him, I actually support to privacy line of cases that made the ruling quite logical.

Wei Jian said...

When the Court should be dressed down, it should be. Justice Scalia did this at a time when the Court is deserved (see, for example, Scalia's dissent in Lawrence v. Texas, that makes me - a social liberal who supports gay marriage as a matter of policy - for a Justice Scalia fan when I read in law school).
There is no reason that the right of Kagan should not do this, when does the majority of it deserves. (I'm not saying it's AFECFCP is right or wrong, I have not read.) I do not think to say is lively and immature. And alienating colleagues is a separate issue, tactical and empirical, and depend on circumstances.WOW Items Gold Buy WOW Items Cheap WOW Items Tera Gold Buy Tera Gold Cheap WOW GoldBuy WOW Gold WOW GoldTera Gold

Tom Croos said...

It seems to me that 99% of beards are Scalia direct criticism of specific points, rather than a rhetorical question followed by a sarcastic \Me too as Kagan offers. And this seems to be a class of their own to criticize liberal judges to make ad hoc judgments based on their say-so (as is often the case Scalia) and say there is no reason (as Kagan does) . WOW Items WOW Gear eden gold buy eden gold cheap eden gold

The latter is simply contemptuous. Scalia certainly can be rough at times. But at least he is engaged in the debate and direct about it. But his way of writing should not be the norm. Scalia did not earn more" to be corrosive. The Supreme Court should not be a political arena.

prince said...

Recent opinions of the Supreme Court to keep the budget WI Walker is not a model for future decisions of the Supreme Court (or his antics behind the scenes). While I applaud the disposition of this matter, I thought the majority was too easy in his analysis (not to distinguish between cases apparently contradictory) and the dispute went too far. The solution is not to reflect the dissent of the majority. And the "solution" Scalia does not increase the polarization of the Supreme Court.Cheap Tera Gold Tera Power Leveling Tera Account Tera Items RS Gold cheap tera goldRS Gold Buy RS Gold Eden Eternal Eden Eternal Gold Eden Eternal Review