FIRST ONE @ ONE FIRST

The Future is Here

Posted in Clairvoyance, Law and Politics by Mike Sacks on December 13, 2010

This morning C-SPAN released a few choice clips from its interview with Justice Kagan in anticipation of its airing the full interview this coming Sunday night.  In the above clip, Justice Kagan speaks about her respect for Chief Justice Roberts.

Meanwhile, if you go over to the Supreme Court’s page for this term’s opinions related to orders of the Court, you’ll see this:

Either Justice Alito or Justice Sotomayor has been a part, if not an author, in every one of those opinions, all but one dissents from denials of certiorari.

This term, I’ve been thinking quite a lot about these two pairings–Chief Justice Roberts and Justice Kagan, Justice Alito and Justice Sotomayor.  At oral argument as well as in the few opinions of this term, it has become clear that they are developing doppelgänger demeanors.

Roberts and Kagan conduct themselves like suave assassins, devastating advocates without compromising their gentility.  They apprenticed at the feet of the Court’s then arch-partisans–he, Justice Rehnquist; she, Justice Marshall–and now possess those two men’s collegiality without their more prickly public personas.  Indeed, Roberts and Kagan, both bred for leadership at Harvard Law, are public creatures: the Chief and the Dean.  Firm but polished, one can see these two in twenty years as gracefully grayed totems of conservative and liberal jurisprudence.

Alito and Sotomayor, on the other hand, are their sides’ enforcers.  Appearing rough around the edges, they send clear, aggressive messages, often on behalf of their comrades, but sometimes alone on principle.  In their self assurance that comes from years of practice in the lower courts, they seem not to have much interest in institutional niceties when the law is disobeyed or justice is disregarded.  Both Princeton and Yale Law grads, they took active roles in their institutions’ internal battles over coeducation and affirmative action.  Rather than skirt controversy and stay quiet to maintain squeaky clean public records, they took stands over the identity politics of their days that have continued into 21st century America.  It is no wonder, then, that Alito and Sotomayor have had no hesitance going on record to dissent from denials of certiorari, even if such opinions were once seen as rare peeks behind the curtain saved only for a justice’s irrepressible outrage.

The massive cases about health care, gay marriage, affirmative action, and abortion bubbling up to the Supreme Court in the next few years will mark the final overlap between the old Court and the new: the septuagenarians–Ginsburg, Scalia, Kennedy, and Breyer–will have as much time remaining in their twilight on the bench as Roberts, Alito, Sotomayor, and Kagan will have spent so far on it.   For those cases, we will rightly focus on Justice Kennedy for the bottom-line prognostication and ultimate pronouncements.  But we should absolutely save some of our peripheral vision for how our four youngest justices conduct themselves at argument and in print, as those cases will be the crucibles upon which their careers will be characterized for the next generation.

This piece is cross-posted at The CockleBur.

6 Responses

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  1. Joe said, on December 15, 2010 at 5:35 pm

    Roberts at oral argument at times comes off as rather tough, including at times when he was questioning Kagan.

  2. [...] Sotomayor’s spreading her liberal wings this term, concludes with references to this “amusing and astute post.”  Thank you for all of your support this year, [...]

  3. [...] } My good friend Mike Sacks wrote an eloquent post a few weeks ago titled The Future Is Here. In it, Mike argues that Justice Sotomayor has become the liberal “enforcer,” on the [...]

  4. [...] writer references comments by Mike Sacks, writing on his legal blog. Here Sacks contrasts Justices Roberts and Kagan, then Justices Alito [...]

  5. ndf said, on December 29, 2010 at 4:45 pm

    I find it fascinating that Thomas is not mentioned at all…a testament to his legacy?

  6. [...] December 2010, Adam Liptak and others, following a great post by Mike Sacks, queried whether Sotomayor would guide the liberal wing of the Court.  As evidence of this hope, [...]


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