The Corner

Law & the Courts

Justice Kagan’s Rhetoric Diminishes the Court

Supreme Court Justice Elena Kagan attends a ceremonial swearing in Washington March 6, 2015. (Yuri Gripas/Reuters )

In the case of Brnovich v. DNC decided last week, the Supreme Court wrestled with whether Arizona’s laws against ballot harvesting and out-of-precinct voting are permissible under Section 2 of the Voting Rights Act. Given the political nature of the dispute, a naïve Court observer might assume that the justices would be especially careful to limit their analysis to the relevant text and case history, avoiding any hint of personal investment in the outcome.

The naïve observer is not familiar with Justice Elena Kagan. Her dissent establishes from the outset her emotional commitment to the Voting Rights Act. “If a single statute represents the best of America, it is the Voting Rights Act,” she gushes. It is “a monument to America’s greatness,” “an extraordinary law,” a “crucial tool,” a statute that has “done more to advance the Nation’s highest ideals” than any other.

The importance or desirability of a law is supposed to be irrelevant to how a judge applies it, but Justice Kagan is not finished telling us about her personal views. She also wants readers to know that the statute is “so necessary” today. “Few laws are more vital in the current moment.” In fact, we are at “a perilous moment for the Nation’s commitment to equal citizenship” because of state voting rules that she opposes.  Fortunately, Section 2 of the Voting Rights Act “is well-equipped to meet the challenge,” she writes. And it is not just wrong, but “tragic” that the majority takes a more narrow view of Section 2.

Justice Kagan does include legal analysis in her dissent, but one must wonder whether her emotional rhetoric has clouded her judgment. If she wanted to dispel any notion that she is influenced by what she wishes the law would say, rather than what it actually says, this is a rather poor way to go about it.

Kagan is not the worst culprit by recent standards. Sometimes judges are so committed to their own political statements that they fail to notice the false claims contained within them. Sometimes judicial opinions can double as activist press releases. Sometimes the purple prose gets so out of hand that the opinions are incoherent.

It is no defense to say that all judges are biased even when they don’t reveal it. In my experience, clear and neutral writing helps to discipline the mind. The less we appeal to our passions, the more we are forced to consider objective arguments. On several occasions I’ve been moved by something in the news and rushed to my computer to convert my intuition into an essay — only to realize once I started to lay out the argument that I was no longer so sure of myself.

Even if judges can separate their passions from their legal reasoning, publishing both is hardly reassuring to readers. Imagine, for example, a report by the Congressional Budget Office that calls a proposed bill “a monument to America’s greatness” before estimating its budgetary impact. Readers would laugh at the obvious bias and promptly dismiss the report’s results. We should hold judges to the same standard.

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