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Elena Kagan

Privacy, Property, and the Drug War

Scott LemieuxMar 26, 2013
WikiMedia Commons

While it is likely to attract little attention given today's epochal same-sex marriage arguments, the Supreme Court decided an important Fourth Amendment case on Tuesday. For the second time this year, the Supreme Court issued a ruling in a case involving drug-sniffing dog. This time, however, the Court did not allow the Fourth Amendment to be trumped by the War On (Some Classes of People Who Use Some) Drugs.

Now Hiring: A Few Good Judges

Carl TobiasFeb 15, 2013
Flickr/Cliff

Chief Judge David Sentelle’s recent opinion in Noel Canning v. NLRB holding President Barack Obama’s recess appointments unconstitutional is a trenchant reminder that the D.C. Circuit is, as is often said, the nation’s “second most important court after the Supreme Court.” It has also been, historically, a stepping stone to the high Court. The court now faces four vacancies among 11 judgeships with Sentelle’s February 12 assumption of senior status. But the Obama administration is the first in decades which confirmed no D.C. Circuit judge and has only submitted two names for consideration. The importance and complexity of the circuit caseload means it requires all eleven judges to deliver justice. For this reason—and to increase ideological balance on the court, which has four active and five senior judges whom Republican presidents appointed—Obama and the Senate must expeditiously fill the D.C. Circuit openings.

Should Liberals Be Mad at Kagan and Breyer?

Scott LemieuxJul 09, 2012
WikiMedia Commons

While the Supreme Court's decision to uphold most of the Affordable Care Act in NFIB v. Sebelius was generally good news, the decision did have one unfortunate side effect. The Court limited the use of federal spending power with respect to Medicaid, permitting Congress to withhold new grants but not existing Medicaid funds from states if they failed to adopt Obamacare. In other words, governors can reject new federal funds to implement the health-care law without losing the rest of their Medicaid money.

The Latest Roberts Court Atrocity

The Supreme Court rules to return to prison a grandmother who poses no danger to society.

Scott LemieuxNov 29, 2011

Emily Bazelon has a terrific piece about a recent Supreme Court order that has received very little attention. The case concerned Shirley Ree Smith, a grandmother given 15 years to life for the death of her granddaughter. The conviction was based on "shaken baby syndrome," although the most current evidence suggests that it's extremely unlikely that Smith caused her granddaughter's death. Taking this evidence into account, the Ninth Circuit Court of Appeals freed Smith in 2006.

Justice Kagan.

Monica PottsAug 05, 2010

Though it was expected, it was good to hear Elena Kagan was confirmed by the Senate this afternoon, 63 to 37. Five Republicans voted for her confirmation, and Sen. Ben Nelson, who apparently is vying to become the most obstructionist member of a majority party ever, voted against it.

The Little Picture: Legal Women.

Gabriel AranaJul 02, 2010

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Elena Kagan when she was dean of Harvard Law School, seated next to Sandra Day O'Connor, the first female justice of the Supreme Court, October 2008. Kagan completed her Senate testimony for her Supreme Court nomination this week.

(Flickr/The Harvard Law Record)

Dawn Johnsen Addresses ACS.

Adam SerwerJun 18, 2010

The death of Dawn Johnsen's nomination to head the Office of Legal Counsel was more than the defeat of a single nominee. It was a blow to a liberal legal community that is already struggling to counter the conservative legal message. Johnsen's downfall wasn't being unqualified--she had run OLC in the past--her problem was that she was too strident in speaking out against the lawlessness of the previous administration.

Is Kagan the New Brandeis?

Scott LemieuxMay 26, 2010

The New Republic's strong endorsement of Elena Kagan is a rather odd piece of work. To borrow an analogy from Bill James, the general thrust of the argument is sort of like the Chicago Bulls scrub who combined his "contribution" with Michael Jordan's 54 points and noted that North Carolina alumni had combined for 55. Similarly, TNR's strategy is to link Kagan with the liberal icon Louis Brandeis, who once held the seat Kagan has been nominated for.

Kagan And Executive Power, Ctd.

Adam SerwerMay 26, 2010

John Yoo, giving the ultimate non-endorsement, says Elena Kagan is no John Yoo:

Though Ms. Kagan’s thin record makes it difficult to draw many conclusions on her personal views, her academic work still provides hints into her thinking on this issue. In 2001, she published a 140-page article in The Harvard Law Review, “Presidential Administration,” written when she held no brief for the administration. Some have suggested that because her article looks favorably on President Bill Clinton’s energetic use of executive orders and regulatory efforts, Ms. Kagan must agree with the Bush administration’s theories of the unitary executive.

Will Kagan Have a Harder Time Getting Confirmed Because She's White?

Adam SerwerMay 12, 2010

Josh Green and Ramesh Ponnuru agree that Elena Kagan is going to get fewer votes for confirmation than Sonia Sotomayor because she's white, even though she is less "controversial." Here's Green:

Kathleen Parker Says You Are Not Mainstream.

Paul WaldmanMay 12, 2010

Are you a "mainstream" American? Probably not, according to The Washington Post's Kathleen Parker. In a column today criticizing President Obama's pick of Elena Kagan for the Supreme Court, Parker writes that Kagan just isn't mainstream enough:

Does It Matter Whether Elena Kagan Is Gay?

snaguibMay 10, 2010

Elena Kagan's name was on nearly every shortlist that was published in the days following Justice John Paul Stevens' announcement that this term would be his last on the Supreme Court. In the weeks that followed, there was a fair amount of speculation about Kagan's sexual orientation. CBS blogger Ben Domenech wrote, almost in passing, that she would be the "first openly gay justice." But is she gay?

The Little Picture: It's Kagan.

Alexandra GutierrezMay 10, 2010

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Solicitor General and Supreme Court nominee Elena Kagan sits with the late Justice Thurgood Marshall, for whom she clerked.

Is Kennedy Easily Manipulated?

Scott LemieuxMay 10, 2010

One important component of the liberal case for Elena Kagan seems to be that she could exert a strong influence on the Court's median vote, Anthony Kennedy. Here's Jeffrey Rosen:

Obama has signaled that he wants a justice who can win Justice Anthony Kennedy to the liberal side of the Court in 5-4 votes. Given Kagan’s demonstrated success winning over skeptical conservatives at every stage of her career, she seems ideally suited for this role.

And half-seriously, Jonathan Zasloff:

Ed Whelan's Weak Sauce.

Adam SerwerMay 10, 2010

Last week National Review legal blogger Ed Whelan compared Solicitor General and Supreme Court nominee Elena Kagan to a prostitute for her decision, while she was dean of Harvard Law School, not to openly defy a Supreme Court ruling that would have denied millions in government funding to the institution, despite her public opposition to "don't ask, don't tell."

Whelan dismissed the subsequent criticism, telling everyone they were overreacting:

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