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.

But even if the two were ideological clones, the court would have reason to revert to its traditional reluctance to second-guess the president in national-security cases. Bush’s string of four big defeats in such cases was a historical anomaly, a reaction to his bold claims of virtually unlimited powers to detain suspected “enemy combatants” without due process; to try them in military commissions with rules stacked against defendants; to authorize rough interrogations; and even to defy congressional statutes, as when he ordered wiretaps without the judicial warrants required by the Foreign Intelligence Surveillance Act.

This executive overreach alarmed some of the justices and backfired when the court required judicial hearings and other protections, both for Guantánamo prisoners and for American citizens detained as enemy combatants in the U.S.

Obama has given the justices less to be alarmed about. Yes, his policies on detentions, military commissions, state secrets, wiretapping, and the like resemble the Bush approach enough to horrify the American Civil Liberties Union, which is easily horrified. But Obama has taken care to show more respect than Bush for judicial review of such policies. He has also relied less on inherent presidential powers and more on authorities conferred by Congress, such as the September 2001 authorization for use of military force against Al Qaeda and its allies.

Obama’s recognition that his powers have limits may help explain why the justices have seemed reluctant lately to hear petitions from detainees claiming violations of their rights. On June 14, for example, the court declined to hear an appeal from Maher Arar, an innocent Canadian suing former attorney general John Ashcroft and other Bush-era officials; Arar had accused the officials of packing him off to Syria to be tortured as a suspected terrorist. The decision left standing a 7—4 federal appeals court ruling that Arar could not sue for damages because Congress had not authorized the courts to hear such claims.

Another appeals court ruled in May that three detainees who were captured outside Afghanistan–but who were sent there to be imprisoned at the Bagram Air Base–have no rights to judicial hearings because Bagram (unlike Guantánamo) is in an active theater of war. If that decision is appealed, the Supreme Court, with or without Kagan, is likely to turn it aside. (Kagan would probably recuse herself because she was involved in the case as solicitor general.)

Still, if the court does flex its muscles in a war-powers case, there’s at least one possible scenario where Kagan’s vote could be decisive. Suppose that Obama persuades Congress, as some have urged, to adopt a new law giving federal agents more time for incommunicado interrogation of suspected terrorists who might have information about planned attacks before allowing them to see a lawyer or judge. Would Stevens have upheld such a law? I suspect not. Stevens has long been a fierce defender of the Miranda rules and other restrictions on interrogations of ordinary criminal suspects. Might Kagan uphold such a law? I suspect so.

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