Kagan, the Democratic appointee who has sought to be a consensus-builder for much of her legal career, broke sharply with the court’s tradition of downplaying disagreements and emphasizing off-the-bench bonhomie. In her speech at Salve Regina University in Newport, R.I., last September, she even went so far as to argue that these mundane staples of the justices’ public patter may actually now be obscuring the dysfunction on the nation’s highest court. …
In interviews, friends and allies of the 62-year-old justice suggest she is at a major crossroads — mulling whether the breakdown in the broader American political scene has rendered her decadelong effort to find compromise and consensus on the nation’s highest court obsolete, while sowing doubts about her future.
The fact that her comments seem to have prompted equally unusual public retorts by some of her conservative colleagues — principally Justice Samuel Alito — only underscored the sense of brewing discontent.
“She’s clearly not very happy,” said one longtime associate, who like many interviewed for this story asked to speak anonymously due to the sensitivity of the issues involved and due to concern about impact on cases pending at the court.
Many saw her comments as a profound warning that all is not well on the court, both in terms of relations between the justices and in terms of its historic reputation.
[Or maybe Kagan’s the problem. It’s tough to call her a “consensus-builder” when she publicly airs private disputes and picks these fights herself. Let’s not forget that Kagan is the only justice on the court never to have served a day as a judge prior to her appointment, either. There’s a serious question that arises from Gerstein’s report as to whether she was ever temperamentally suited for this role. — Ed]
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