Ethan Leib (with Michael Serota) in USA Today, on the senate confirmation hearings of Elena Kagan.
The political rhetoric and popular media coverage of Elena Kagan's confirmation hearings has been filled with significant debate over matters of constitutional law. We've heard questions and answers (or non-answers) about the freedom of speech, about executive power, about balancing national security against constitutional rights, about guns, about religion, and about abortion. No doubt this form of inquiry is appropriate; senators are entitled to get some handle on Kagan's constitutional vision, even if President Obama's nominating her tells them most of what they need to know. Many of the Supreme Court's most controversial decisions involve questions of constitutional law, and they are the types of judicial opinions that are most salient to the public. The Senate Judiciary Committee has been appropriately doing due diligence for the people, whose interests they represent.
But what the people and the senators doing the questioning should know — but seem not to — is that the Supreme Court's docket is chock full of very consequential cases for Americans' lives that do not involve constitutional interpretation at all. A quick look at the statistics published annually by the Harvard Law Review for the last three terms reveals that more than half of Justice Kagan's work on the Court would be filled with questions of statutory interpretation, or the way in which judges derive meaning from the text of statutes. And yet we spend very little time pressing justices-to-be on how they would interpret the primary set of legal rules that govern life in America.