May 13, 2010
BIRMINGHAM, Ala. - President Barack Obama's choice of Solicitor General Elena Kagan as his nominee for U.S. Supreme Court justice suggests that he is looking to the court to maintain current policies rather than to "transform" society, says a University of Alabama at Birmingham (UAB) expert in judicial behavior and the politics of judicial regimes.
Robert Robinson. Download image.
"The Obama administration does not require much from the Supreme Court in terms of new decisions, and thus puts a fairly low priority on using the Supreme Court to transform society," says Robert R. Robinson, Ph.D., assistant professor of political science. "Republicans, on the other hand, have sought to create a Supreme Court that would change the legal landscape, repealing laws favored by liberals such as Roe v. Wade.
Conservatives have expressed fears that Kagan would bring radical, left-wing views to the Supreme Court. U.S. Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, along with other members of his party has criticized Kagan's decision as dean of the Harvard Law School to ban military recruiters from campus in protest of the "don't-ask-don't-tell" policy on gays in the military. But some on the left worry that Kagan may not be liberal enough.
"All Obama wants, I believe, is a court that will not make any more sharp moves to the right, such as in the case of Citizens United v. Federal Election Commission, in which the Supreme Court expanded First Amendment rights to corporations seeking to support political campaigns," says UAB's expert.
In fact, Robinson says, a plurality of liberal constitutional law scholars have written that efforts to create a left-leaning Supreme Court in the mold of a Warren Court would only further stir up the right, making Republicans more powerful. The focus, they write, should be on pursuing legislation rather than court decisions.
"Major liberal precedents that allow the government to regulate the economy and enforce civil rights and civil liberties restrictions are still largely in place," Robinson says. "All that an 'Obama Court' needs to do is to prevent them from further eroding.
"In other words, Obama wants a Supreme Court that will not invalidate his health care bill," he says. "For that, almost any moderately liberal justice will do. As such, he seems to value nominees with a high probability of confirmation so that he will not have to spend considerable political capital.
"Given Kagan's limited paper trail, she appears to fit that profile."
About the UAB College of Arts and Sciences
The UAB Department of Government is housed in the UAB College of Arts and Sciences, home to academic disciplines that include the arts, humanities, sciences ands the School of Education. The college's unique structure advances research and learning in both K-12 and higher education, and its courses are taught by a world-class faculty. Committed to the UAB spirit of independence and innovation, the college enables students to design their own majors, participate in undergraduate research or complete graduate degrees on a five-year fast track. Through productive partnerships, flexible curricula and a bold, interdisciplinary approach to learning and teaching, the college is preparing students for success in the ever-changing global marketplace of commerce and ideas.