Elena Kagan

I Was Wrong about Elena Kagan

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AP Photo/Susan Walsh O ne of the central arguments made by In the Balance , Mark Tushnet's terrific new book about the current Supreme Court bench ( reviewed here by Garrett Epps ), concerns the counterweight to the conservative faction led by Chief Justice John Roberts. If Democratic nominees are able to wrest control of the Supreme Court back from the Republican nominees who have controlled the median vote on the Court for more than four decades, Tushnet argues, it is Elena Kagan who is likely to emerge as the intellectual leader of the Democratic nominees. And despite what many liberals feared, there is every reason to think that this would be an outcome supporters of progressive constitutional values would be very happy with. When I say "many liberals," I include myself . My skepticism about the nomination, I should clarify, was not because I thought Kagan was a bad or unqualified nominee, or because I thought she was a closet reactionary. In the context in which Democrats had a...

Four Lessons Learned from This Year's Stuffed Supreme Court Docket

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(AP Photo/J. David Ake) A momentous Supreme Court term concluded on Wednesday with historic decisions on same-sex marriage. But while the previous term will be forever defined by the Court's narrow upholding of the Affordable Care Act, the 2012-3 term had an unusual number of important decisions for a contemporary court. There are several important lessons to take from the term as a whole: On Civil Rights and Liberties: One Step Up, Two Steps Back. As Philip Klinkner and Rogers Smith observed (among many others) in their book The Unsteady March , progress on civil rights isn't a linear progression in which things start off terribly and keep getting better. Progress achieved in one generation can be substantially rolled back in the next; civil rights often advance for some groups while backsliding for others. (World War II catalyzed substantial civil rights advances for African-Americans; Americans of Japanese origin and suspected political radicals, conversely, saw substantial...

Privacy, Property, and the Drug War

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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. Jardines v. Florida involved a home search that uncovered marijuana plants, leading to a conviction. The police received an unverified tip that marijuana was being grown in Jardines's residence, but presumably did not believe that this tip was sufficient to establish the "probable case" required by the Fourth Amendment to obtain a search warrant. To obtain a warrant, the police took a drug-sniffing dog, who indicated that it had found the scent of illegal drugs. The findings of the dog's actions were used to obtain a search warrant to search Jardines's house, which led to the...

Now Hiring: A Few Good Judges

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Flickr/Cliff C hief 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. Because of its location and the minuscule number of cases...

Should Liberals Be Mad at Kagan and Breyer?

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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. Despite the consequences and dubious logic of this holding, however, it was joined by two of the Court's Democratic appointees: Clinton nominee Stephen Breyer and Obama nominee Elena Kagan. Given the escalating conservative outrage over Roberts's joining with the Court's more liberal faction on the other key elements of the case, several writers have wondered: Where's the liberal outrage against Breyer and Kagan? "In contrast to all the weeping and wailing that has accompanied what...

The Latest Roberts Court Atrocity

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

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. Last month, as the culmination of a lengthy back-and-forth between the Court and 9CA, the higher court by a 6-3 majority reinstated the jury verdict, requiring Smith to return to prison although she is almost certainly innocent and does not pose any threat to society. Taken in isolation, the Court's order is by no means outrageous. Generally, appellate courts are only permitted to assess legal errors by lower courts, not to second-guess how juries evaluate evidence. It should be noted, however, that the...

Justice Kagan.

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. David Leonhardt , whose column I wrote about yesterday, used the last three women nominated to the Supreme Court -- Kagan, Sonia Sotomayor , and Harriet Miers -- as examples of the type of women more likely to succeed in their careers; those without children. Leonhardt's column pointed out that much of the gender gap in the workplace can be explained as a motherhood gap, since women without children earn more and can be promoted more than women with children (though they still do worse overall than their male counterparts). It's also worth pointing out that the kinds of sterling records men like Chief Justice John Roberts are praised for are the same types of sterling records women like Sotomayor and...

The Little Picture: Legal Women.

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.

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. Referring to the footnote in an abortion related brief that was the pretext for Republicans opposed to her nomination in a speech in front of the American Constitution Society last night, Johnsen said, "do you think for one moment I wish I had sat that fight out, due to caution and calculation? Not a chance, not for a moment, not on your life." For liberals, it's hard not to contrast the death of Johnsen's nomination to head OLC or Goodwin Liu 's stalled nomination to the Ninth Circuit with the lukewarm resistance to Elena Kagan 's potential elevation to the Supreme...

Is Kagan the New Brandeis?

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. On its face, the analogy between Brandeis (a rather prickly, solitary intellectual with a voluminous record of published liberal views preceding his Supreme Court nomination) and Kagan (a go-along-to-get-along networker with a remarkably consistent record of failing to express controversial views on any subject) is strikingly inapt. So what is the basis for the comparison? Kagan is said to share Brandeis' belief in "judicial restraint." But like its flip side, " judicial activism ," at this level of abstraction it's a vacuous term...

Kagan And Executive Power, Ctd.

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. This is a mistake that could only be based on reading just the first page of her article. Choosing not to study a treatise on presidential administrative policies containing 527 footnotes is an understandable act of self-preservation. Nonetheless, those who persevere will find that her article clearly and directly rejected the theories supporting the...

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

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: Voting against Sotomayor entailed voting against the first Hispanic nominee to the Supreme Court. That's a tough vote to cast if you're a Republican. (If Obama had nominated Kagan first and Sotomayor on Monday, it would be even tougher because of Arizona's racial profiling law.) But Kagan is not the first woman on the Court, or the first Jew, or even the first Jewish woman. It's safe to vote against her, and I expect many Republicans will. Somehow, it doesn't occur to either of them to mention that Kagan is less controversial because she's white, because she's not the first woman on the Court, the first Jew, or even the first Jewish woman. Her nomination to the Court isn't perceived as a usurpation of a position of power meant for white people. And it's really quite odd that Green and Ponnuru...

Kathleen Parker Says You Are Not Mainstream.

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: Certainly New York City dwellers would argue that they struggle with ordinary concerns, just in a more dense environment. But New York, like other urban areas, tends to be more liberal than the vast rest of the country. More than half the country also happens to be Protestant, yet with Kagan, the court will feature three Jews, six Catholics and nary a Protestant. Fewer than one-fourth of Americans are Catholic, and 1.7 percent are Jewish. One does not have to be from a rural Georgia backwater ( Clarence Thomas ), or the child of recently arrived immigrants ( Antonin Scalia and Samuel Alito ), to qualify as a justice, though it might help in claiming identity with ordinary people. One could even argue that it matters only that one regard the...

Does It Matter Whether Elena Kagan Is Gay?

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 White House quickly shot back at CBS after Domenech's piece ran, with spokespeople saying that CBS was "posting lies on their site" and that Domenech "made false charges." For his part, Domenech fired back that "her female partner is rather well known in Harvard circles." But I'm not interested in whether she's gay. I'm interested in whether it matters. Conservatives clearly think it matters. For conservatives, being part of any minority group apparently means that you'll have trouble deciding issues fairly because of your identity, as if the jurisprudence of white men isn't at all...

The Little Picture: It's Kagan.

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

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