Ouch by Jeff Rosen. But he, as do I, really likes Justice Kagan’s writing. Rosen thinks Elena is going to give Nino a run for his money.
On the current Court, Antonin Scalia has long been regarded as the most dazzling writer. His opinions are a pleasure to read, because they often include sentences like the following: “Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.” But, after only a year on the bench, Scalia’s newest colleague, Elena Kagan, is already giving him a run for his money
The Court’s best writers tend to do their most striking work in dissent, unconstrained by the need to pacify their colleagues. (Holmes, Brandeis, and Scalia have all been called “The Great Dissenter.”) So it has been with Kagan. In her first year on the Court, she wrote three dissents, two of which combine Scalia’s gift for the sharp aphorism with John Roberts’s powers of analytical dissection. But she also has something more: an ability to puncture her colleagues’ bloodless abstractions and tendentious arguments, and to explain the constitutional stakes in plain language that all citizens can understand.
I am a big fan of Kagan’s writing. It is absolutely a pleasure to read. Whether this makes her a leader on the left, is to-be-seen. Justice Brennan was not the best writer, but he could count to 5. Holmes, the great dissenter, had more trouble counting.
Of course, Kagan can’t achieve greatness merely by tossing off pithy one-liners. She also needs to provide a positive vision of values in which she believes. Brandeis’s dissents were great not only because of the arguments they attacked, but because of the principles they championed: the curse of bigness, in corporations and in government; the value of the states as “laboratories of democracy”; and the importance of translating constitutional values like privacy and free speech in light of new technologies. It’s still too early to tell what Kagan is most passionate about—aside from a devotion to government neutrality. But Kagan has made a remarkable debut, and, if she develops a positive vision in the years to come, she has the ability to make it resonate far beyond the courtroom.