Order on the Court


With Solicitor General Elena Kagan’s Supreme Court confirmation hearing due to start June 28, left-leaning skeptics worry that she may be more deferential to presidential war powers–at the expense of civil liberties–than retiring Justice John Paul Stevens.

It’s true that in the future, the justices are likely to take the president’s side more often than in the George W. Bush years. But if that’s the case, the main reason won’t be the expected confirmation of Kagan. The real reason may be simpler: that the court has less cause to intervene in national-security matters now that the Bush-Cheney administration’s extravagant claims of presidential power are history.

This is not to dismiss the speculation–by leftist critics, but also by some supporters of Kagan, including Harvard Law colleague Charles Fried–that she may be more inclined to support presidential war powers than Stevens. It was Stevens, after all, who led the liberal justices’ charge against Bush’s denial of due process to detained terrorism suspects. In doing so, Stevens and his liberal colleagues stretched judicial power over the military further than ever before.

View a gallery of recently-released documents marking Elena Kagan’s legal career, Jason Reed / Reuters-Corbis

While Kagan has said very little about such issues, her work representing the government in national-security cases has doubtless given her an appreciation of the challenges facing any wartime president. And records from her four years in the Clinton White House suggest that she may be less liberal overall than Stevens.

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