There was a great deal of fanfare early in 2010, when President Barack Obama nominated Elena Kagan for a position as justice on the United States Supreme Court. Recently, Kagan was confirmed to the high Court by the United States Senate, and was sworn in on August 5, 2010. She is the President’s second Supreme Court appointee, following the nomination and installation of the country’s first Hispanic justice, Sonia Sotomayor. She also becomes the fourth female justice; joining retired Justice Sandra Day O’Connor, and current Justices Sotomayor and Ginsberg. She replaced former Justice john Paul Stevens who resigned earlier this year. Kagan, the 50-year-old former Harvard law School dean, is now responsible, along with her colleagues, for determining the direction of the country’s most divisive issues, including abortion, immigration, gun laws, and the death penalty.
Most justices arrive with their own former judicial law clerks, but Kagan will not because she is the first justice in 40 years with no prior experience as a judge. She was herself a former law clerk on the Supreme Court, however. Since her confirmation, she has hired her law clerks, three Harvard law graduates, and one clerk from Yale. Despite the lack of judicial experience, Kagan does have the advantage of her background as solicitor general. While in that role, she personally attended many functions and meetings usually delegated to staff and developed a solid reputation in establishing working relationships. This should serve her well as she moves this fall to become an important part of the Court.
The High Court always reconvenes on the first Monday of October, and by the time this story sees print, Justice Kagan will have already been hearing cases for a few weeks. Even during summer recess, Kagan has had an opportunity to review thousands of Emergency Petitions, as she prepared for October. Perhaps the most newsworthy and controversial of those emergency petitions is the same-sex marriage case originating in California and the petitions involving the BP oil spill in the Gulf of Mexico. It is also quite common for the Supreme Court Justices and their clerks to work during the summer on 11th – hour death row appeals, keeping things busy even during the summer recess.
Kagan’s presence on the Court will most likely not change the current ideological balance of power, but rather preserve the current composition. As of this writing, she has yet to cast a vote in any case, but she is generally considered a part of the liberal minority, as was her predecessor Justice Stevens. She will thus join the liberal wing of the Court comprised of Justices Sotomayor, Bader, and Breyer. The conservative majority will remain intact with Justices Robert, Thomas, Scalia, Alito, and the usually conservative Kennedy. Occasionally, Kennedy does provide the “swing” vote, and joins the liberal minority on a particular issue.
The United States Supreme Court has seen a complex evolution in the types of cases presented over the years, in decisions such as Brown v. Board of Education, Roe v. Wade, and Texas v. Johnson, where the Court decided the issues of school segregation, abortion, and freedom of speech. Moving forward into a new day and age, issues of modern technology, immigration, and gay marriage will be in the forefront.
May criticisms have been leveled at the Court over the decades, including judicial activism, interference with State’s, rights, failure to protect individual rights, and not providing a proper check on the use of judicial power. This criticism has probably existed ever since the Supreme Court heard its first case in 1792, as it began its responsibility in interpreting the Constitution. Nevertheless, Kagan seems well prepared to positively contribute to the Court in it’s always important role in our country.
Kevin L. Collins is a San Antonio Criminal Defense Lawyer, former Prosecutor and is Board Certified in Criminal Law and Juvenile Law by the Texas Board of Legal Specialization and also a member of the Criminal Law Section of the San Antonio Bar Association. His website is www.kevincollinslaw.com.
 She clerked for Justice Thurgood Marshall.