Kagan’s Court Debut
Will the new justice have much effect on what could be a sleeper term?


Jonathan H. Adler

For the second year in a row, the Supreme Court’s term opens with a new female justice: After brief service as solicitor general, former Harvard Law School dean Elena Kagan was nominated and confirmed to replace longstanding liberal justice John Paul Stevens. Most anticipate that Justice Kagan will replicate Stevens’s liberal orientation, but little else is known about how she will perform as a justice. In contrast to Justice Sotomayor, who joined the court with substantial trial- and appellate-court experience, Justice Kagan has never been a judge, nor does she have much litigation experience. Indeed, she is the only member of the Court without prior judicial experience.

Given the next term’s docket, Justice Kagan may have the chance to cut her teeth without showing her hand on many ideologically charged issues. The 2010–11 Supreme Court term lacks many high-profile cases, unlike the past term, which covered such headline-grabbing subject matter as gun rights, separation of powers, “crush” films, and campaign finance. The larger legal controversies of the day, including gay marriage, “don’t ask, don’t tell,” Arizona’s anti-immigration law, and health-care reform’s individual mandate, have yet to reach the high court.

But that hardly makes this term unimportant. The docket is no more than two-thirds full and already contains plenty of important cases, particularly for the business community. And for Court watchers, the prevalence of less politically salient legal issues could make it a better measure of the Court’s most junior justice — at least in those cases in which she is able to participate: Because of her work in the solicitor general’s office, Justice Kagan has recused herself in 25 cases, nearly half of the Court’s cases docketed to date.

Arizona’s much-debated SB 1070 is not yet before the Court, but another Arizona immigration measure is. In Chamber of Commerce v. Whiting, the Court will consider whether federal law preempts a state law designed to prevent private businesses from employing illegal immigrants. Arizona’s law requires employers to use a purportedly voluntary federal electronic database to verify the work-authorization status of potential workers and imposes stiff sanctions on companies that hire illegals. The business community and civil-liberties groups say federal law preempts such measures, and they have been joined by the Obama administration, even though the law was signed by then-governor, now–secretary of homeland security (and one-time Supreme Court short-lister) Janet Napolitano. As in so many other cases this term, Justice Kagan is recused.