ELENA KAGAN has people skills. They helped her bring harmony and star appointments to Harvard Law School, where professors and students described her as an open-minded, approachable, fair and funny dean. She was particularly successful in making conservatives feel welcome on a campus that had been fractured.
President Obama signaled early in his search to replace Justice John Paul Stevens on the Supreme Court that he wanted someone who could forge consensus. People skills, right? Rather than a passionate ideological counterweight to Justice Antonin Scalia, how about someone who could make some of those blockbuster 5-4 decisions flip to a liberal result?
In nominating Ms. Kagan on Monday, Mr. Obama praised “her openness to a broad array of viewpoints, her habit, to borrow a phrase from Justice Stevens, ‘of understanding before disagreeing,’ her fair-mindedness and skill as a consensus-builder.” But will those plays-well-with-others qualities actually help Ms. Kagan build majorities on the court? Specifically, can she use them — in a glib phrase that trips reflexively off the pundit’s tongue — to sway Justice Anthony M. Kennedy, the court’s swing vote?
The very questions, law professors and legal historians say, are rooted in a powerful misunderstanding of how the court works.
“It’s a fantasy that if you just pick the right person with the right set of interpersonal skills and political skills you’re going to charm the guy in the middle,” said Seth Stern, an author of a forthcoming biography of Justice William J. Brennan Jr.
Indeed, Supreme Court justices are among the last people susceptible to schmoozing, flattery and arm-twisting. “They’re not young,” said Lee Epstein, a law professor at Northwestern and an authority on the court. “They’re very well educated. They’re not impressionable 13-year-olds.”
Justice Kennedy is 73, has served on the court for more than two decades and has settled views on many legal issues. “This notion that he can be led around by the nose by some clever person seems to me wildly off the mark,” said Geoffrey R. Stone, a law professor at the University of Chicago.
For starters, the justices’ chambers work largely as independent law offices, communicating through memorandums and draft opinions. Informal contacts on matters of substance, if they happen at all, tend to be among the justices’ law clerks.
Justice Kennedy, in an interview with C-Span last year, described how communications among the justices actually work.
“Before the case is heard, we have an unwritten rule: We don’t talk about it with each other,” he said. If the rule is violated, “we send a memo to everybody about what we’ve talked about, because we don’t want little cliques or cabals or little groups that lobby each other before.”
“The first time we know what our colleagues are thinking is in oral arguments,” he said, “from the questions.” The justices next discuss the case at their private conference, now announcing tentative votes.
The primary counterexample to the line of thinking that the court is a hushed intellectual monastery was Justice Brennan, a famously affable and charming judge with excellent political skills. But even here it would be a mistake to attribute to charisma what was in fact the product of reason and compromise.
Professor Stone, who served as a law clerk to Justice Brennan, described his old boss’s approach. “It’s not by flattering them or making them like you,” he said. “It’s finding common ground. It was substantive. It’s finding ways to move them 10 degrees.”
The resulting decisions were not always models of principle or consistency, but Justice Brennan would invoke what he called the first rule of the Supreme Court by holding up an open hand: It takes five votes to accomplish anything.
Justice Brennan also brought to his task a work ethic fueled by prodigious energy, a quality Ms. Kagan seems to share. “This guy was willing to put a ton of time into cases he cared about,” Professor Epstein said.
The Brennan analogy has limits. The justice, who retired in 1990 after 34 years on the court, served in a less polarized era, one in which as many as five votes could be up for grabs. These days, justices and advocates alike are often focused solely on obtaining the vote of one man, Justice Kennedy.
Justice Brennan seldom persuaded Justice Scalia to vote his way in ideologically charged cases, but they got along well, Justice Ruth Bader Ginsburg told C-Span last year.
“Justice Scalia considered Justice Brennan his best friend on the court at that time, and he thought the feeling was reciprocated,” Justice Ginsburg said. “The public wouldn’t know it from reading an opinion by Brennan, a dissent by Scalia, or the other way around, but these were two men who genuinely liked each other and enjoyed each other’s company.”
Chief Justice John G. Roberts Jr. possesses a light, quick wit and can be extremely charming. But there have been few signs lately that those qualities have translated into the unified court he talked about in his early days there.
There are certainly signs that Justice Stevens has had a special rapport with Justice Kennedy, though it would be easy to confuse strategic behavior and persuasion.
Consider the history of an important Guantánamo case, Boumediene v. Bush. In April 2007, the court declined to hear it, and three liberal members — Justices David H. Souter, Stephen G. Breyer and Ginsburg — dissented, saying the issues were significant and warranted review. It takes only four votes to grant review. Yet Justice Stevens, apparently concerned that he did not yet have Justice Kennedy’s fifth vote for a ruling in favor of the detainees, instead issued a joint statement with him saying the case was not quite ripe for consideration.
Two months later, the court reversed course and agreed to hear the case. The votes on granting review were not made public, but if Justice Stevens now thought he was assured of Justice Kennedy’s vote on the merits, he turned out to be right. In the end, Justice Stevens, as the senior justice in the majority, assigned the opinion for the court to Justice Kennedy. The decision, issued in June 2008, ruled in favor of the detainees. The vote was 5 to 4.
Ms. Kagan has been known to play a little poker, and it may be that the skills she gained at the card table rather than those she honed in the dean’s office will serve her best should her nomination be confirmed by the Senate.
The dean of a major law school can offer professors money, status, support for a pet project, help with housing, maybe even a job for a spouse. A Supreme Court justice has little more than a vote and such power of persuasion as flows from written reasoning.
“There is just more logrolling in the academy,” Professor Epstein said. “I have never observed in all my many years of reading the papers of the justices any evidence of logrolling.”
Some liberals have their reservations about Ms. Kagan, saying they yearn for a booming progressive voice on the left to counterbalance Justice Scalia, who has for decades now filled that role on the right.
“Maybe that would inspire people or change the public debate,” said Mr. Stern, the Brennan biographer. “But it’s not going to change results on the court.”
There are friendships on the court, of course, sometimes deep ones. But
friendships are not votes. Justices Scalia and Ginsburg share a love of the
opera and celebrate New Year’s Eve together. Yet the two disagreed in
two-thirds of the divided cases decided last term.