Analysis

Elena Kagan was not quite four years old when Bob Dylan’s studio album, “The Times, They Are a-Changin’,” was released 46 years ago.  But that might well be the theme song for the Supreme Court, when Solicitor General Kagan, as now seems likely, takes the seat soon to be vacated by Justice John Paul Stevens.  The third woman on the bench, and the youngest of three Justices in their fifties, Kagan could well be an agent of that change.  A glaring fact: she is nearly three generations younger than the man she would replace.

As the days wound down this past week toward Kagan’s selection by President Obama, the nation could look West and East and see cultural conventions on the verge of change, much along the lines of Dylan’s title track.  At the Salt Palace Convention Center in Salt Lake City, a  Republican U.S. Senator who is a Mormon and has absolutely solid conservative credentials was dumped by his own party.  In Boston, some 2,400 miles — and perhaps a world — away, the gay rights movement got a serious hearing in the Moakley U.S. Courthouse on  its plea to change the nation’s legal perception of marriage.

What those events have in common, though, is that both will figure in the fight over the future of the Supreme Court that begins later this morning with the announcement of Kagan’s nomination, and both will influence, in coming months and years, the political pressures on the Court.

In Salt Lake City, the still young but already politically grown-up Tea Party movement was in the process of changing the face of American politics, denying nomination to GOP stalwart Robert Bennett, in a demonstration much more convincing than even the surprise January replacement of the late Sen. Edward Kennedy with Sen. Scott Brown in Massachusetts, and at least as convincing as driving Florida Gov. Charlie Crist out of the GOP to run for the Senate as a frantically struggling independent.

The Senate — and especially the Senate’s Republicans and some centrist Democrats – will no doubt read some special significance into Bennett’s political demise.  Already, the Tea Party activists in Utah are boldly saying that Sen. Orrin Hatch, a longtime leader of the Senate Judiciary Committee, will be next to feel their displeasure with Washington.

Whatever the long-term future of the Tea Party is as a political movement, its early show of power and the knack to use it will, in the short term, deepen the partisan rancor in Washington and perhaps the nation, and the processing of Kagan’s nomination may well be affected to some degree.   She is a product of the nation’s liberal Northeast, born in Manhattan, and tutored in the corridors of power.  She definitely will not be a poster figure for the Tea Party.

Moreover, the social conservatism that is so much a part of the Tea Party agenda is likely to have a significant limiting effect on President Obama’s legislative initiatives over the next two-plus years, and that inevitably will alter the policy agenda that translates into legal controversy before the Supreme Court.   Already, under pressure that can be traced directly to recent terrorist incidents, the Obama Administration is talking of narrowing the constitutional right to “Miranda warnings” for terrorism suspects — posing a major test for the Court.  And Congress’s attempt to seize control over detention policy is forcing the Administraton’s hand about Guantanamo, risking a potential confrontation with the Court.

Tea Party resistance to the health care reform law, and the effect that resistance has so far had in stirring up legal challenges to that law, may test the current Supreme Court’s tolerance for expansive government involvement in the economy. That could spill over into disputes over Washington superintendence of the financial industry.   Where Kagan would come out on such issues could well be tested during Senate review of her nomination.

Still, there is a counter-current running in American culture, and Kagan has been a part of that.  This is the spread of tolerance of gay people, a phenomenon that is particularly evident in the attitudes of younger generations.  Just a few years ago, it would have been astonishing for eight same-sex couples to show up in a federal court, demanding equality not for their sexual orientation but, of all things, for their marriage.  They were married in Massachusetts, and have now sued in federal court to challenge some of the  denial of equal benefits to spouses that Congress mandated in the Defense of Marriage Act.

Their case in the federal courthouse in Boston is running almost simultanously with a challenge in federal court in San Francisco to the constitutionality of Proposition 8 — that state’s ban on gay marriage.  Both of the cases illustrate that issues of gay equality will reach the Supreme Court, and sooner than had once been expected.  Not far behind them, very likely, will be new issues over the don’t ask-don’t tell policy against gays serving in the U.S. military — a policy that Kagan, at Harvard Law School, energetically resisted.

These issues, too, almost certainly will play some role in the review of Kagan’s nomination.  The Court that she would join has already established itself as significantly more tolerant of gay equality than much of political America is or is likely soon to be.  But the marriage equality issue may be a supreme test of that tolerance.

For the time being, Kagan can anticipate that, on many of the heavy controversies that come before the Court, she may not have much opportunity to exert significant influence.  The more committed of the Court’s conservative Justices have been having increasing success in drawing swing Justice Anthony M. Kennedy to join them in major cases, and that makes a five-Justice majority that simply may not need Kagan’s vote, even if it were available.  Although known for her skills at persuasion, Kagan is but a fifty-year-old with no prior experience in shaping judicial majorities.

Though nominally taking the Stevens seat, she has very little chance, in her early years, of developing the capacity that he had so successfully mastered in drawing Justice Kennedy, sometimes surprisingly, to the liberal side.

Still, Kagan, just because she is only 50, could share the perspective of her emergent generation with her older colleagues, and perhaps persuade them, now and then, to see what the post-Bob Dylan age has become.

Posted in Analysis