Virginia is poised to put a woman to death, the first in almost a century.  The story has already been told, that Teresa Lewis is borderline mentally retarded, suffers from a dependent personality disorder and, if this strikes one as consequential, didn’t actually commit a murder.  Rather, she’s alleged to be the mastermind behind the death of her husband, having two killers for hire do the work.

Cries to let her live came from around the world.  No dice, says Virginia Governor Robert McDonnell, who found “no compelling reason” to commute her sentence.  And so the court of last resort was petitioned.  And took a pass.

The decision by the Supreme Court of the United States was 7 to 2 against a stay of execution. 

But I’m struck by something in that Supreme Court entry.  The two dissenters, the two (and only two) who thought her murder should be stopped and the case should be heard, were Justices Ginsburg and Sotomayor.  And they are, of course, two of the women on the Court.  Is that relevant?  Just maybe.

As Gamso notes, there was a third woman on the Court who got a vote on this petition.  Elena Kagan, hot off her confirmation hearing.  Fresh out of the Solicitor General’s corner office, cum Harvard Law School, that bastion of knee-jerk liberalism on the Charles, Associate Justice Kagan gave us our first real glimpse of what she brought to the table.

The obvious question, given that the only justices who would have granted the stay were women, is whether this was a gender thing, an empathy that a woman justice might better appreciate than a hardened male.  Perhaps no love for the death penalty, but the law nonetheless.  Judicial modesty demands deference, even if it’s not the preferred choice.

By voting with the men, Justice Kagan has dispelled any notion that there would be a progesterone trio, too soft to do the hard work demanded of a Supreme.  She broke ranks with the gals and proved she was one of the boys.

It strikes me that Justice Elena Kagan may well have just proven what some have said about her from the outset; that she is a shrewd player.  As Doug Berman notes:

But those hoping (or concerned) that Justice Kagan will be a shrewd junior justice who will build bridges/allies among more conservative Justices should be pleased (or troubled) that Justice Kagan seized an early opportunity to show that she will not always vote for death penalty stays.

There is always a tendency to take flagrant characteristics and extrapolate from them a person’s motives.  Whether it be race, gender or political persuasion, we jump to the assumption that someone in power will exercise it in a predictable way.  Justice Kagan did not.

Maybe Elena Kagan really isn’t the liberal devil that the conservatives claimed.  Maybe she’s not as empathetic as Justices Ginsburg and Sotomayor.  Maybe she doesn’t have a problem with the death penalty, or with putting a woman to death even though she didn’t actually kill anyone.  Maybe she thinks Teresa Lewis’ low intelligence and susceptibility to manipulation don’t matter.  There are plenty of maybes here.

One of them is that the shrewd woman, who became the President of Harvard Law School despite a dearth of scholarship because she knew who to kiss and flatter, and parlayed that into a black robe on First Street, knows how to play the game better than anyone else. 

If this is why Elena Kagan failed to vote for a stay, then it’s one of the most cynical moves by a justice in long memory.  It will mark her forever, as the liberal justice whose first vote was to put a woman to death.  It will take the wind out of all those Americans who thought that electing Obama president would mean Supreme Court appointees who would stand up to the pretense of originalism as an excuse to strip constitutional rights whenever they got in the way of a really good execution.  Talk about a disappointment.

Justice Kagan’s vote against a stay for Teresa Lewis may well buy her applause from that wide swathe of America who believed that she would be the knee-jerk liberal, the empathetic woman, the activist justice who would undermine all that made America special.  With one vote, Justice Kagan bought herself a whole bunch of good will from the conservative side of the Court.  And all she had to pay for that good will was the execution of one sad, pathetic woman.

Watch out for Justice Elena Kagan.  She’s an up-and-comer, and if her vote here is an indication that she plans on owning the center of the court, controlling the destiny of American law by the cheap purchase of votes from either side, she’s not done yet.  Forget that she’s a woman.  Forget that she came from Harvard and was appointed by Obama.  Just don’t forget that Justice Kagan voted against a stay for Teresa Lewis.  I wonder if she has ordered a robe with velvet stripes on the sleeves yet?