Bench Memos

NRO’s home for judicial news and analysis.

Kagan and the Roberts Court


Democrats on the Senate Judiciary Committee have sought to use the Kagan confirmation hearing as an opportunity to portray the Roberts Court as a reactionary, activist, business-oriented court (much as they did during Sotomayor’s hearings), but they have not gotten much cooperation from Kagan.  Time and again she has refused to sign on to critical interpretations of Roberts Court opinions offered by her Democratic inquisitors.  In many instances, she’s had to correct Democratic Senators, gently explaining how their caricatures of Roberts Court decisions don’t account for various considerations and offering less nefarious explanations for the Court’s reasoning in allegedly activist decisions (as when she told Senator Franken this morning that Justice Kennedy may have ignored legislative history in a case because he found the relevant statutory text clear).  Kagan may only be doing this so as not to alienate her future colleagues, but doesn’t make the specatacle any less embarrassing for her inquisitors.  The Senators are asking questions researched and scripted by their legal staff, while Kagan has to answer on the fly — and yet her impromptu answers have more nuance and reveal a greater understanding of the underlying issues than the prepared questions.


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