By Dan Kennedy • The press, politics, technology, culture and other passions

Elena Kagan and free speech

Elena Kagan at Harvard Law School in 2008

Does Solicitor General Elena Kagan have a problem with the First Amendment?

After President Obama announced Kagan as his choice to replacing retiring Supreme Court Justice John Paul Stevens, liberal and left-wing commentators zeroed in on her unflagging support for broad executive authority.

But there are reasons to be concerned about her commitment to freedom of expression as well.

In 2002, I singled out Harvard University for a Dishonorable Mention in the Phoenix Muzzle Awards for banning military recruiters from campus over its discriminatory policies against gay men and lesbians. Kagan did not become dean of Harvard Law School until 2003, but her support for that ban has quickly emerged as an issue in her confirmation.

(In 2004, for good measure, I gave then-secretary of defense Donald Rumsfeld a Muzzle for forcing the matter by threatening to cut off federal funds to colleges and universities that banned recruiters.)

More recently, Kagan appeared before the Supreme Court to defend a federal law prohibiting the depiction of animal cruelty. As solicitor general, she was merely doing her job. But University of Chicago law professor Geoffrey Stone, a former colleague of Kagan’s, recently told NPR’s “On the Media” that she went above and beyond the call of duty, proposing a case-by-case balancing test that could have posed a serious threat to freedom of speech. Stone said:

It really was a dangerous argument for the Solicitor General to make. It would have, if accepted, completely revolutionized a large part of First Amendment doctrine, losing the gains we’ve made throughout the 20th century…. Kagan would probably say she inherited this case; when she became solicitor general it was already in process. Nonetheless, I have to say that I was surprised that Elena didn’t take a red pen and scratch those parts of the brief out.

Kagan also argued vigorously against the notion that corporations should be allowed to spend freely on political speech, as stipulated in the recent Citizens United decision. And Obama cited that decision as one of his reasons for appointing her. I have mixed feelings about the ruling — like my Muzzle colleague Harvey Silverglate, I think it was directionally right, but I’m concerned about the consequences.

(By the way, Silverglate and Kyle Smeallie recently wrote an in-depth analysis for the Phoenix of Kagan’s record in anticipation of her appointment. Definitely a must-read.)

Nevertheless, Citizens United stands as yet another example of what appears to be Kagan’s approach to free speech: to cast it aside whenever it competes with her other goals and objectives.

Photo (cc) by Doc Searls via Wikimedia Commons. Some rights reserved.

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  1. BP Myers

    Read all the New York Times coverage this morning and it occurs to me we knew more about what Harriet Myers thought than we do Ms. Kagan.

    Given that she’s argued in the past for a more rigorous nomination process, with lots more openness by nominees, we will learn much by whether she walks the way she talks.

    And she has every right to keep her private life private, but I’d resent it very much if this were a stealth nomination. Frankly, I watched her speech yesterday and fully expected her to thank her partner. Now THAT would have shown some courage.

    Of most concern to me, curiously, is that she appeared in her high school photo wearing a judicial robe and carrying a gavel. That sort of single-mindedness scares me.

  2. L.K. Collins

    I agree with Dan, it is the consequence that is the important part of any judicial decision.

    Kagan is likely “qualified”. But she clearly is a political choice, not-so-much in the left-right debate, but more in the sense that the Administration did not want a disastrous summer of politics to endanger his party’s any further then it already is.

    There were better candidates, even ones more left than Kagan, judges with solid records and known temperament.

    Remember Justice Ginsberg is about as left as they come, and she won easy confirmation. I doubt if anyone still considers her elevation ill-considered.

    No, I think this nomination is a typical “which way is the wind blowing” choice that has come to be the staple of this administration’s choices.

  3. Brad Deltan

    What concerns me more than anything is that Kagan is only 50 years old. That means, if appointed, she will likely be on the bench for 25 or 30 years…maybe 40. That’s not an appointment, that’s royalty.

  4. Neil Sagan

    “… to cast it aside whenever it competes with her other goals and objectives.”

    That’s an unfair formulation. It’s not specific and it presumes motive “her other goals and objectives.” Perhaps Dan would be willing to make specific formulation.

    Here’s an example, Kagan is for limited free speech in crowded movie theaters becuase she believes it would be irresponsible to allow, under free speech doctrine, a patron to yell “Fire” and cause a panic likely to cause injury or death.

    Your turn.

  5. Sean Griffin

    Is a “Kagan is a youngster” meme beginning? Clarence Thomas was 43, Souter 50, Sandra Day O’Connor was 51, Scalia 50, Byron White 45. What’s next?

  6. Sean Griffin

    Rehnquist 48, Roberts 50.

  7. Brad Deltan

    Touche, Sean. But I would say you’ve just proven my point: life expectancy has long since reached the point where SCOTUS justices can reasonably expect to nearly spend more of their lives on the job than off it. Now we’re seen a full cycle of that and the results are questionable at best. Many might say disastrous.

    Spending 30 or 40 years in the same governmental role is not healthy for democracy no matter how you slice it. Hell, anyone in the same job for 20 years is likely to be pretty useless as a thinking man (or woman) at that job. Either that or the job doesn’t call for much thinking to begin with…and being on the SCOTUS is about the most “thinking” job there is!

    It’s not that I think the problem is Kagan, I think the problem is that a political appointment has ramifications long, long after the appointer is gone and the nation has drastically changed.

    That said, if you’re saying that by citing Thomas, Scalia and Roberts that there’s even the slightest chance Kagan could end up like any of those three? Then I’d run away screaming from her, regardless.

  8. L.K. Collins

    The length of service of Justices is one of the strengths of the Supreme Court.

    As long as the Justices retain the intellectual acuity to handle the debate, age is not and should never be a barrier.

    Ideological stability, as directed by the rulings of the Supreme Court, assures that the Constitution remains at the core of our society while allowing for change, sometimes painfully slowly, to move our society to new and better places at a pace that the society has a capacity to absorb.

    New, young thinkers tempered by experienced and seasoned reasoners make the Supreme Court a unique and valuable institution.

    For this very reason, a President’s nomination of a Supreme Court Justice ranks high in the President’s powers as such nominations have the capacity to alter the future.

  9. Brad Deltan

    As long as the Justices retain the intellectual acuity to handle the debate, age is not and should never be a barrier.

    L.K. this is a caveat on the order of saying that the Titanic was an unsinkable ship as long as she didn’t hit any icebergs.

    How exactly would you propose that we determine whether a Justice retains their intellectual acuity? How often should that determination be revisited? What happens if it’s determined that they DON’T possess it anymore?

    My point, of course, is that these are impossible questions to answer. Yet as our populace increasing has the ability to live longer and longer…and maintaining “life” while suffering severe degradation of physical and mental health…they are questions of the highest order. We see examples every day of people in high-level positions with diminished mental capacity insisting that nothing is wrong and refusing to step down. I seem to remember we had a President like that in the 1980’s. And I’ll bet you $1000 that if a definitive test for Alzheimers or Dementia existed, you’d find at least one SCOTUS justice had it for years before stepping down from the bench.

    But that test doesn’t exist. And until it does, it strikes me the only fair (albeit crude) way of dealing with this very real problem is to slap a term limit on it. Given the rough consistency in age of SCOTUS appointees, maybe 20 years would be appropriate?

    • Dan Kennedy

      Toward the end of Oliver Wendell Holmes’ life, critics complained that Brandeis had two votes, since Holmes would do whatever Brandeis told him.

  10. Sean Griffin

    Brad, Souter retired after less than 20 years. O’Connor retired in 2006 and they didn’t have to take her out on a stretcher. Who is to say that Thomas and Scalia (and Kagan) won’t follow their lead?

  11. Brad Deltan

    @Sean: Scalia’s coming off the bench in a box and nothing else. Did you see him on 60 Minutes? “I simply I cannot think of what I would do for an encore. I can’t think of any other job that I would find as interesting and as satisfying”

    Translation: “I’ve got a lot of power and I’m never never never going to give it up.”

    Plus Scalia hasn’t exactly cared much about precedent or about decorum, has he?

    As for Thomas, consider what Dan said, then bear in mind that Scalia and Thomas vote the same way over 86% of the time (according to Thomas’s Wikipedia page) And he’s only 61, I can give you 90-to-1 that he won’t retire as long as Obama is in office…and I’ll give you 50-to-1 he doesn’t retire before 2021; that alone would would give him 30 years on the SCOTUS…and personally I think he’ll stay until he’s closer to 80 and that means almost 40 years on the Supreme Court. Yikes.

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