Elena Kagan’s Scholarship

The idea has gotten out there, largely courtesy of Paul Campos, that Elana Kagan was an unproductive scholar. Eugene Volokh says that’s a mistake and we should simply see her as someone who had a brief tenure as a scholar:

Kagan was a working scholar from 1991–95, and then 1999–2003. Between those years, she worked in the Clinton Administration; after those years, she was dean at Harvard Law School, a position that these days leaves its holder with very little time to do serious scholarship. In those eight years, she wrote or cowrote four major articles (linked to here), Presidential Administration (Harv. L. Rev. 2001), Chevron’s Nondelegation Doctrine (Harv. L. Rev. 2001, cowritten with David Barron), Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine (U. Chi. L. Rev. 1996), The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion (Sup. Ct. Rev. 1993). She also wrote three shorter but still substantial pieces, When a Speech Code Is a Speech Code: The Stanford Policy and the Theory of Incidental Restraints (U.C. Davis. L. Rev. 1996), Confirmation Messes, Old and New (U. Chi. L. Rev. 1995), and Regulation of Hate Speech and Pornography After R.A.V. (U. Chi. L. Rev. 1993).

Quantitatively, this is quite good output for eight years as a working scholar. It looks a lot smaller if one looks at her career from 1991 to 2009, when she was appointed Solicitor General — but for the reasons I mentioned above, that’s not the right way to look at it.

Volokh also notes that the articles seem to be high-quality and influential. At a minimum, they’re widely cited. In other words, you’re not looking at the output of an undistinguished scholar, just the output of someone with a limited track record. This highlights the tension here between a desire to have a thoroughly vetted nominee and a desire to put someone as young as possible on the court. Ultimately, I think it’s a pernicious-but-inevitable consequence of the system of lifetime appointments to federal courts.