Whatever chance President Obama had of having another justice confirmed to the Supreme Court has probably disappeared now that the Republicans have assumed control of the Senate. This means that President Obama’s first two nominees to the court—Sonia Sotomayor and Elena Kagan—will likely be his only two nominees to the court.
Sotomayor and Kagan share similarities when it comes to the substance of their constitutional liberalism, but have proved to be quite different in their styles. Kagan has a style on and off the bench that embraces and has been embraced by the legal elite. Sotomayor, by contrast, has a style on and off the bench that embraces and has been embraced as much—if not more so—by those outside the legal elite. I have elsewhere called Sotomayor “The People’s Justice,” and we should think of Kagan more as “The Establishment’s Justice.” The battle between these two styles could define the future of liberal constitutional politics just as it has defined liberal politics more generally.
Political dynamics on the left feature a constant tension between those with the most and the least educational credentials. On the elite end, former President Clinton is a Rhodes Scholar and Yale Law School graduate, and Obama was the president of the Harvard Law Review. Both presidents drew on networks of elite university graduates—for instance, two-thirds of Obama’s Cabinet appointees attended an Ivy League university. In the 2012 presidential election, Obama won a clear majority among those who had postgraduate degrees.
On the other end, those with the least elite educational credentials are also strong Democratic Party supporters. Obama won his largest majority, by some measures, among those without high school diplomas. Obama has given many speeches touting what an increase in the minimum wage would mean for those with the lowest levels of education.
The liberal justices on the Supreme Court have largely been creatures of the educational elite. Justices write judicial opinions that use technical language making them incomprehensible to many Americans, including even to many lawyers. All nine current justices, as Dahlia Lithwick recently noted, attended Yale or Harvard law schools.*
Sotomayor is certainly a creature of the educational elite. She graduated summa cum laude from Princeton University, and then from Yale Law School, where she served on the Yale Law Journal.
Sotomayor’s career, though, unlike those of other recent liberal justices, has been marked by a complicated amalgam of embrace and rejection of the legal educational elite. As Joan Biskupic’s new biography discusses, while at Yale Law School, Sotomayor filed a complaint against a partner at a Washington law firm for his inappropriate remarks at a recruiting dinner about whether Sotomayor was admitted to Yale just because she was Puerto Rican. After graduation, while many of her colleagues were interested in clerking for federal judges or working at bigger corporate law firms or in the federal government, she worked for a smaller law firm and for a local prosecutor in New York City (albeit a famous one, Robert Morgenthau, the district attorney for Manhattan).
Sotomayor has engaged with these elite audiences on and off the court. She writes judicial opinions that engage in the technical debates involved in deciding Supreme Court cases. She speaks before elite university and law school audiences and at organizations led by alumni of these institutions. Having attended some of these events myself, I can attest to her mastery before these audiences.
Most of Sotomayor’s time, however, has been spent appealing to other audiences. Her best-selling autobiography, published in 2013, topped the New York Times best-seller list for many weeks, and her appearances to promote the book became like rock concerts. In an appearance in Chicago, she hugged a 7-year-old who asked her about books. On New Year’s Eve 2013, she could be found in Times Square with Miley Cyrus.
She also reaches out to these audiences from on the bench. In her first year on the Supreme Court, she used the phrase “undocumented immigrant” rather than “illegal immigrant” for the first time in a court opinion. Her dissenting opinion this past April in an affirmative action case used more broadly appealing language that reached mass audiences. She talked about how “[r]ace matters” because it forces young minority men and women to have to endure “the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts”—that they do not belong. The story featuring her opinion was the second-most emailed story that morning in the Washington Post.
Sotomayor has been greeted with a mixture of indifference and hostility by the elite. Before she was nominated to the Supreme Court in 2009, my colleague Jeffrey Rosen feared in the New Republic that Sotomayor would not be an “intellectual counterweight” to the conservative justices. Harvard Law School professor Laurence Tribe wrote to Obama when Sotomayor was a potential nominee to the court that she was “not nearly as smart as she seems to think she is.” (He later apologized.)
This lukewarm-to-negative reaction is in stark contrast to the deep enthusiasm with which other audiences greet her. She was named one of CNN’s 10 most intriguing people in 2009. Many stories covering her public appearances note how she “charms” her audiences.
Kagan, in contrast, has been defined much more by her closeness with the legal elite. At Harvard Law School, Kagan built relationships with faculty who would later assist her in obtaining a clerkship with Supreme Court Justice Thurgood Marshall. Kagan was also a law professor at the University of Chicago and Harvard.
Kagan eventually became the dean at Harvard Law School. She was so successful in managing the faculty that another law school dean labeled her tenure the “Miracle at Harvard.” Obama referenced her Harvard deanship during the press conference announcing her nomination.
During her time on the Supreme Court, Kagan has dazzled elite law school, university, and related audiences. She visited her undergraduate alma mater, Princeton, and reflected on attending her most recent alumni event there. She visits and teaches a class at Harvard Law School.
In return, these audiences have embraced Kagan. After her first term on the Supreme Court, Rosen praised two of her opinions in the New Republic. Stanley Fish, a literary critic and scholar, praised “Elena Kagan’s Style” in the New York Times.
The question for the future of liberal constitutional politics is therefore a simple one but a profound one: Will these stylistic differences between Sotomayor and Kagan conflict with one another, or complement one another? How will appearing with Oprah Winfrey and Katie Couric—as Sotomayor has done—fit with Kagan’s discussions about constitutional theories?
Sotomayor and Kagan could complement each other. Kagan’s efforts as The Establishment’s Justice ensure that the liberal perspective on the Constitution convinces the elite that brings and decides constitutional cases before courts and works on constitutional issues in the other branches of government. Sotomayor’s efforts as The People’s Justice convince the other crowds. She persuades other members of the public, those who vote for and otherwise influence their elected representatives to understand the Constitution a certain way and nominate judges that think that way. This is a role that has not been played by liberal justices in the past generation.
On the other hand, Sotomayor and Kagan’s styles could conflict with each other. If we think of constitutional law as technical—more science than politics—Sotomayor’s populism might undermine any liberal attempts to articulate their vision of constitutional law as constitutional law. Each time Sotomayor talks about the Constitution in the simplified way, it undermines Kagan’s efforts to make her constitutional theory seem technically appealing to elite audiences.
Our public debates are as much about the people who come to represent ideas as they are about the ideas themselves. The differences between Sotomayor and Kagan are likely to define constitutional liberalism on and off the Supreme Court for a long time to come. The question that will shape the future of our Constitution is whether their differences become a source of unique advantage or disadvantage. Only constitutional time will tell.
*Correction, Jan. 13, 2015: This article originally misstated that all nine justices graduated from Harvard or Yale law schools. Ruth Bader Ginsburg attended Harvard but graduated from Columbia.