You can parse that headline however you like. Will newly invocated Associate Supreme Court Justice Elena Kagan will be working less-than-full-time hours in upcoming months? Or, can Kagan be expected to only intermittently apply traditional values of American jurisprudence? To both questions, the answer is unequivocal: Yes.
As Jonathan H. Adler pointed out yesterday at NationalReview.com, because Pres. Obama used Kagan liberally when she was his solicitor general, her recusals will put her on the bench for half of the upcoming cases on the High Court’s docket. Even the progressives who cheered vigorously at her nomination will have to wait until perhaps 2012 to see what real change will come from replacing a 20th century liberal judge with a 21st century one.
One unintended consequence of Kagan’s high number of recusals is the revelation of a legal high wire act the Obama administration has been performing since taking office, launching policy based on a hair’s breadth of constitutional support. The 25 cases Kagan has recused herself from so far are the best evidence that, in a very real sense, the jury is out on whether the White House’s aggressive actions pass constitutional muster.