Wednesday, June 17, 2020

Justice Kagan: Are There Possible Conservative Undercurrents in Her, Otherwise, Liberal “Stream of Tendency?”

By Benjamin J. Wisher
Benjamin Wisher, a 2020 graduate of Albany Law School, was an Associate Editor of the Albany Law Review, a Dean Thomas Sponsler Honors Teaching Fellow, and a Research Assistant for Professor Patrick M. Connors.  Prior to attending law school, Benjamin earned a bachelor’s degree in Criminal Justice with a minor in Sociology from SUNY Albany.
After his first year of law school, Benjamin was a Summer Law Clerk for Rivkin Radler LLP in their Albany office.  During his second year of law school, Benjamin was a Judicial Extern to the Honorable Mae A. D’Agostino, District Court Judge for the United States District Court for the Northern District of New York.  Thereafter, Benjamin was a Summer Associate for Barclay Damon LLP in its Commercial Litigation practice group. Currently preparing for the bar exam, Benjamin looks forward to working at Barclay Damon LLP full-time.

The law is imperfect.  Imperfect because it leaves “gaps” to be filled and “ambiguities” to be cleared.  So, how do judges and justices rectify the law’s shortcomings?  As Justice Cardozo theorized (expounding on Justice Holmes’ earlier writings), in each of us, justices and judges included, lies a “stream of tendency.”  This “stream,” comprised of, both, subconscious and conscious “tides and currents,” give “coherence and direction to thought and action.”  For judges and justices, this results in judicial decisions.

Today, there is much ado about how the justices on the United States Supreme Court are perceived to be filling the law’s “gaps” with their respective political ideologies.  However, what is far less known, and surely far more interesting, are the instances in which the Justices buck their political leanings and vote against their typical voting bloc.

This paper applies these principles to one Supreme Court Justice: Elena Kagan.  Upon an examination of the instances in which Justice Kagan goes rogue on her liberal colleagues, a conservative “undercurrent” within her otherwise liberal “stream of tendency” can be deduced.  As evidenced by the research within, this paper concludes that Justice Kagan maintains a conservative “undercurrent” which flows against criminal defendants accused of heinous crimes against young women. 
To read the paper, open HERE.