Policymakers on the Supreme Court

With the Clinton Library’s release of memos written by Elena Kagan while working for the White House, Politico parrots the theory that her work history represents a “level of political engagement that is unusual for this court.” It’s not clear to me whether they think that’s good, or bad, but either way, it’s wrong.

With Sandra Day O’Connor’s retirement (we miss you!), the Roberts Court became the first in many, many years to lack a Justice with some political background. The Court’s political tradition is in fact ancient, and seating Kagan would bring the body more in line with its original composition.  A few of the more famous examples:

  • Chief Justice John Marshall: former Congressman, Secretary of State, state politician.
  • Justice Thurgood Marshall: former Solicitor General.
  • Justice Robert Jackson: former Solicitor General, and Attorney General.
  • Justice Hugo Black: two-term Senator for Alabama.
  • Chief Justice Earl Warren: former Attorney General, and Governor of California.
  • Chief Justice Howard Taft: former President of the United States, Secretary of War, Governor of the Phillipines, and Solicitor General.
  • Justice Harlan Stone: various executive appointments, and former Attorney General.
  • Justice Salmon P. Chase: former Secretary of the Treasury, extremely influential in the Civil War Cabinet; previously Senator for, then Governor of Ohio.

The Court also benefits from a strong tradition of Justices with such histories ignoring positions previously taken in a political capacity — an important and perhaps essential institutional check on executive power, given the number of Solicitors and Attorneys General to make it to the bench. This tradition counsels against taking as proof of her judicial philosophy any positions Kagan took in her role as an advocate. But it means the Court would benefit from that experience.

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