Tag: Supreme Court

Initial Kagan Critiques Miss the (First Amendment) Point

As I’ve been re-reading Supreme Court nominee Elena Kagan’s publications – of which there are surprisingly few for someone of her achievements and reputation – I’ve had half an eye on the TV punditry.  It seems that the leading critique from both the right (e.g., Fox News, Senator Jon Kyl – who’s usually excellent on these things) and extreme left (e.g., Jane Hamsher) is that Kagan doesn’t have judicial experience. 

This just completely misses the point.  As a solicitor general (the “Tenth Justice”) and former dean of Harvard Law – where she did a magnificent job and gained the respect of scholars from across the political spectrum – not to mention senior roles in the Clinton White House, teaching at the University of Chicago and clerking for Justice Thurgood Marshall, Kagan absolutely has the credentials and intellectual chops to be a Supreme Court justice.  Indeed, as I said this morning, her scholarly persona means she’s probably better suited to being a justice than to being solicitor general – especially given that her performance as an oral advocate has left something to be desired.  And we’ve had plenty of non-judges on the Court, people coming from the executive branch (William Rehnquist), academia (Felix Frankfurter), private practice (Lewis F. Powell, Jr.), and politics (Hugo Black).

I actually agree with President Obama that it’s not a bad idea to have somebody with a “different” professional background on the Court – although Kagan’s time in the ivory tower is no more likely to give her a common touch than a nominee coming from the “judicial monastery.”  And, as the president said, Kagan “has won accolades from observers across the ideological spectrum, not just for her intellect and record of achievement, but also for her temperament.”  So the problem really isn’t her supposed lack of relevant experience.

One problem is precisely her very short paper trail – though there are no indications she’s anything but a conventional modern liberal, on which more in future – but something to tease out of that trail, combined with her year as SG, is a certain hostility to the freedom of speech.  For example, in her article “Regulation of Hate Speech and Pornography After R.A.V.,” she attempts to find a constitutional way to restrict the sorts of speech that she personally finds offensive.  And in her defense of the federal “depiction of animal cruelty” statute – which the Supreme Court struck down 8-1 – she argued for a balancing test weighing the value of speech against its social harm.  Not to mention her arguments in Citizens United, the campaign finance statute that, until it was struck down could have banned books, flyers, and movies that contained political speech.  (Interestingly, in Citizens United, she abandoned the very “level political playing field” argument the president invokes to criticize the decision.)

I’m of course not criticizing her appearance as an advocate defending the federal laws at issue in Stevens and Citizens United – that’s her job as solicitor general – but if you read the argument transcripts, you see that she could have done so in ways less sweepingly inimical to free speech. There is other evidence to this effect (see her First Amendment articles here, here, and here, plus others lacking public links), but you get the idea.

Kagan: Revenge of the Grinds

I’ve been saying for a while that to understand the Obama administration specifically and much of today’s liberal Left more broadly, you need to conceive of it as a sort of extension of the intellectual and policy culture of high-end legal academia. The nomination of Elena Kagan, best known as a successful Harvard law dean, extends this familiar pattern. Assuming Kagan coasts to an easy confirmation, she’ll join a liberal caucus on the Court that more than ever resembles a faculty meeting.

To the dismay of some on the left, Kagan, like Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor before her, counts as a “cautious and confirmable” pick – a reliable liberal vote, almost certainly, but not particularly known for disturbingly big ideas or impassioned rhetorical gestures. (The Obama administration does contain plenty of law professors of the latter type – from big thinker Cass Sunstein to liberal firebrand Harold Koh – but has not yet chosen to nominate them to the Court.)

Consider the likeliest speed bump on Kagan’s road to confirmation, her decision to bar military recruiters from Harvard, which resulted in a prolonged and losing showdown with Congress. That episode will be the hardest thing on her record for many Democratic senators to accept (though accept it they will). But it was an overwhelmingly, even near-unanimously popular position to take at top law schools. By way of comparison, recall the mini-furor over Sonia Sotomayor’s “wise Latina” comments, which she’d repeatedly delivered in various versions on the academic conference circuit. There, the notion that a judge’s ethnic background could and should make for different and better decisions was met with predictable applause and little challenge; when aired in wider public debate, it proved hotly controversial and the nominee prudently backed away.

Obama spokespeople spent much of last week rumbling about the need for judges with a common touch who’d stand up for the people. This fed speculation that they might mix up the Court by picking an elected official, trial lawyer or crusading prosecutor. Just kidding! For better or worse, we’re in for more law made by Harvard, Yale and Chicago intellectuals.

Does Elena Kagan Support Limited Government?

After Justice Stevens announced his retirement from the Supreme Court, President Obama spoke of wanting to nominate someone with a “keen understanding of how the law affects the daily lives of the American people.” If Solicitor General Elena Kagan has that understanding, she probably got it from books.

We get a glimpse of that in this morning’s New York Times. Drowning her sorrow in vodka and tonic after Ronald Reagan took the White House in 1980 – during that summer she’d worked on the losing Senate campaign of liberal Democrat Liz Holtzman – the young Ms. Kagan would write in the Princetonian, “Where I grew up – on Manhattan’s Upper West Side – nobody ever admitted to voting for Republicans.” She described “the Manhattan of her childhood,” the Times adds, as a place “where those who won office were ‘real Democrats – not the closet Republicans that one sees so often these days but men and women committed to liberal principles and motivated by the ideal of an affirmative and compassionate government.’”

Ms. Kagan would go on from Princeton to Oxford, Harvard Law, clerkships with Judge Abner Mikva and Justice Thurgood Marshall, a stint in private practice in Washington, a professorship at the University of Chicago Law School, then back to Washington for service in the Clinton White House, and finally a return to Harvard Law as professor, then as dean, before being tapped by Obama as solicitor general.

That’s an impressive rise, to be sure. Whether it has acquainted Ms. Kagan with the lives of ordinary Americans is open to question. But it surely has acquainted her with the modern conception of the Constitution, which is at some remove from the document itself. Whereas the Constitution as written creates a government of limited powers, modern “constitutional law” has allowed an all but unlimited federal government – nowhere more evident than in Ms. Kagan’s sponsor’s cardinal achievement to date, ObamaCare.

In this time of the Tea Party movement (witness this weekend’s developments in Utah), when the cry is “Give us back our Constitution,” the question, “Are there any longer any limits on federal power?” will doubtless be prominent during the upcoming Senate confirmation hearings. Ms. Kagan has a slim publishing record for someone with her background, so the hearings will be especially important for answering that question. One hopes that at least the Republicans on the Senate Judiciary Committee will be resourceful and diligent in pressing the question.

Kagan Nomination Launches Constitutional Debate

As expected, and despite an exhaustive review of shortlist candidates, dead-end leaks about Hillary Clinton, and other distractions, President Obama settled on the long-time prohibitive favorite to be his next Supreme Court nominee.  Elena Kagan became the justice-in-waiting the moment Sonia Sotomayor was confirmed, so you didn’t have to be Tom Goldstein to have predicted this.  The president wanted a highly credentialed non-judge who would serve for a long time and wouldn’t cost too much political capital.  He got a 50-year-old solicitor general and former dean of Harvard Law School – the first female in each post – whose record the Senate (and media, and activists) already examined in a confirmation process that put her into her current post.  That her appointment would put three women on the high court for the first time also doesn’t hurt.

Kagan is certainly not the worst possible nominee from among those in the potential pool – that would’ve been Harold Koh, had President Obama been most inclined to appoint the first Asian-American justice – but others would have been better in various ways.  Although all Democratic nominees would be expected to have similar views on hot-button “culture war” issues like abortion, gay rights and gun control, Diane Wood is a renowned expert on antitrust and complex commercial litigation, for example, and Merrick Garland would almost certainly bring a stronger understanding of administrative law.  Although some on the left are concerned that replacing Justice John Paul Stevens with Kagan “moves the Court to the right,” there is no indication that the solicitor general is anything but a standard modern liberal, with all the unfortunate views that entails on the scope of federal power.  Another concern is her mediocre performance in her current position – the choices of which legal arguments to make from those available to her in defending federal laws in Citizens United and United States v. Stevens, for example, were not strategically sound – though she may well be better suited to a judicial rather than advocacy role.

In any event, with Democrats still holding a 59-seat Senate majority, Elena Kagan’s confirmation is in no doubt whatsoever.  The more interesting aspect of the next couple of months, culminating in hearings before the Judiciary Committee, will be the debate over the meaning of the Constitution and what limits there are to government action.  In an election year when a highly unpopular and patently unconstitutional health care “reform” was rammed through Congress using every procedural gimmick imaginable, voters are more sensitive to constitutional discourse now than they have been in decades.  From bailing out the financial and auto industries to fining every man, woman and child who doesn’t buy a government-approved health insurance policy – and, coming soon, regulating carbon emissions – the Obama administration is taking over civil society at a rate that alarms Americans and fuels both Tea Party populism and interest in libertarian policy solutions (which Cato is happy to offer but wishes were implemented on the front end instead of being invoked as a response to destructive statism).  The Kagan nomination is the perfect vehicle for a public airing of these important issues.

Senators should thus ask questions about the meaning of the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause, to name but three provisions under which courts have ratified incredible assertions of federal power divorced from those the Constitution discretely enumerates.  If Elena Kagan refuses to answer such queries substantively – employing the usual dodge that she may be called upon to interpret these clauses as justice – we can rightfully hold that response against her, as she herself counseled in a law review article 15 years ago.

How the World of Campaign Finance Is Changing

Journalists are looking closely at the DISCLOSE bill, Congress’ response to Citizens UnitedCQ says DISCLOSE will loosen independent spending by the parties on their candidates.

Why is Congress liberalizing party spending? CQ explains:

According to one GOP attorney, opponents of the Supreme Court’s decision are realizing that they will have a difficult time challenging the constitutional right of outside groups to spend money, so this bill is a response to free up the parties to compete.

Mark that. Citizens United has altered the incentives regarding speech. In the past, Congress tried to suppress speech to win elections. Now leaders must liberalize in order to compete for votes.

A Contrarian Cheer for Twombly

My new article, Procedure’s Ambiguity (now up on SSRN and also available here) is a rare bird in the world legal scholarship: it defends the Supreme Court’s much-reviled pleading decisions, Bell Atlantic v. Twombly and Ashcroft v. Iqbal.

It is, in fact, a rare bird even in the small world of articles defending Twombly and Iqbal. Others claim these cases, by directing lower courts to dismiss implausible claims, will deter frivolous suits, save judicial resources, and the like. I find these defenses, while plausible, too speculative and take a very different tack–one that builds on the growing literature on so-called “pluralist” approaches to interpretation. Judicial pluralists favor interpreting ambiguous statutes in ways that mimic approaches to which interest groups would, hypothetically, agree. And Twombly and Iqbal, I argue, are cases after judicial pluralists’ own hearts: They reflect a fair compromise—one, I argue, that mimics the bargain different groups with a stake in procedural rulemaking would, if given the chance, reach among themselves.

Students Have the Right to Free Speech, Too

A northern Texas school district attempted to banish all religious expression from its schools by prohibiting virtually all non-verbal student speech in any school-related context.  Officials used this broad policy to promote an anti-religious orthodoxy and root out any and all religious speech. The Supreme Court made clear, however, in its seminal school speech case, Tinker v. Des Moines Independent Community School District, that students enjoy First Amendment rights, and that core political and religious speech cannot be suppressed without showing that the speech will “materially and substantially disrupt” the educational process.

Here, the Fifth Circuit upheld all of the district’s regulations and found that Tinker did not supply the relevant legal standard.  It instead applied the intermediate scrutiny “time, place, and manner” test of United States v. O’Brien. At issue is whether the school district’s speech policy should be evaluated under Tinker’s “substantial disruption” standard or under O’Brien’s intermediate scrutiny.

Cato, joined by three groups that promote religious liberty, filed a brief asking the Supreme Court to take up the case because the Fifth Circuit’s approach permits schools to enforce sweeping speech codes by which virtually all speech may be prohibited.  Permitting a wholesale content- and viewpoint-neutral ban on all speech or a form of speech as an alternative to the Tinker standard will result in the erosion and eventual elimination of student speech rights.

The name of the case is Morgan v. Plano Independent School District; the Court will likely decide by the end of June whether to hear the case this fall.