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Her Honor

Publication Date: 
November 27, 2011
New York
Dahlia Lithwick

Dahlia Lithwick '96 discusses Justice Elena Kagan’s first term, and how she has become the “Supreme Court’s Champion of Common Sense” in this New York Magazine article.

The inside of the ceremonial courtroom of the United States Supreme Court—where formal oral arguments are heard from October through April—is dark and hushed, draped in red velvet curtains, with a ceiling that rises to the heavens, as nine tiny titans preside from a high bench. The justices bar television cameras, limit seating, and generally do everything in their power to reinforce the impression that the high court is an American oracle at Delphi, the closest thing this country has to a national church. When they agreed this month to hear the challenge brought by 26 states to President Obama’s signature health-care-reform law, the justices stepped into a defining battle over the meaning of the Constitution, the nature of freedom, and the role of the courts. The fight over the Affordable Care Act—which will be heard over an almost unprecedented five and a half hours this spring and decided by the end of June—will push the nine justices into a political spotlight they say they try to avoid.

The outcome of this case, plus affirmative-action, gay-marriage, and voting-rights cases teed up before the Court, may well define the John Roberts era forever, and do so at the risk of damaging the Court’s hard-fought appearance of cool judicial detachment and having neutral legal principles. Americans who’ve grown tired of the 5-4 conservative-liberal splits suspect the nine justices will vote on the health-care case based on naked ideology, with a partisan outcome that may make Bush v. Gore look like a fight over unpaid traffic tickets.


To which the solicitor general was forced to concede in response, “Your honor, I suspect that in those circumstances I might well personally do something else.” Jeffrey Fisher, who co-directs the Supreme Court clinic at Stanford Law School, characterizes Kagan as “more than just the best doctrine cruncher. She has something that comes from a ­higher—almost subconscious—level: an insight into common sense.”