Strauss on Kagan and the "Great Unknown"

Kagan and the great unknown
David Strauss
The Washington Post - Political Bookworm Blog
May 25, 2010

A lot of the discussion about Elena Kagan’s nomination to the Supreme Court consists of speculation about where she’ll fit on the political spectrum with which we are all too familiar. Will she be a dramatic new voice on the left? (Some conservatives do not want her to be confirmed because they’re afraid she will be; some liberals are disappointed because they’re afraid she won’t be.) Will she be a cautious centrist, who will actually move the Court to the right, compared to her predecessor, Justice John Paul Stevens? Will she be a cagey operative, able to sway the “swing Justice,” Anthony Kennedy? And what do we make of the fact that she does not seem to have carved out a clear ideological profile so far in her career?

There’s a place for this kind of speculation, but it risks ignoring one of the most important lessons from the history of the Supreme Court: the issues that mean so much when a Justice is appointed often fade from view, and others take their place. If Kagan is confirmed, she is likely to serve on the Supreme Court for a generation. There is no reason to think that the issues that preoccupy us today—abortion, affirmative action, gun rights—will be the issues that determine her place in history. And we can only guess what issues might be flashpoints on the Supreme Court decades from now.