Elena Kagan: Threat To Free Speech, Or Zealous Attorney ?
Jacob Sullum at Reason expresses concern over Elena Kagan’s views on the proper scope of the First Amendment based on positions that she has argued while serving as Solicitor General:
Defending a 1999 federal ban on depictions of animal cruelty, Kagan boldly asked the Supreme Court to recognize a new category of speech that, along with such historical exceptions as defamation, incitement, and obscenity, is entirely outside the scope of the First Amendment. “Whether a given category of speech enjoys First Amendment protection,” she wrote, “depends upon a categorical balancing of the value of the speech against its societal costs.”
Writing for the 8-to-1 majority, Chief Justice John Roberts called this claim “startling and dangerous,” adding: “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”
Kagan took a similarly strong position during oral arguments in the Citizens United campaign finance case:
Defending federal restrictions on political speech by corporations, Kagan tried to paper over an equally startling claim by Deputy Solicitor General Malcolm Stewart, who had told the Court that the Federal Election Commission could ban books in the name of preventing the appearance of corruption. “The government’s answer has changed,” she said during a second round of oral arguments in September. But it later became clear that she agreed with Stewart, athough she tried to reassure the Court by emphasizing that so far the FEC had not tried to ban any books.
Startling positions to take, indeed, and there was at least some indication that the “we can ban books” position that Stewart and Kagan took during oral argument had actually gone a long way toward persuading the Court to rule the other way. The question, though, is whether it’s either proper, or fair, to make determinations about what positions Kagan might take as a Judge based upon the arguments she made as Solicitor General, where she was required by law to defend any federal statute challenged in Court, and required by legal ethics to do so zealously.
The answer, I think, is probably not:
[Kagan’s] 15-month tenure as solicitor general will be scrutinized. But those trying to forecast her potential Supreme Court opinions face a difficult task. The job of solicitor general is to be not a legal philosopher but a lawyer with a client to defend: the United States government.
“It’s a mistake to assume that every argument an SG makes on behalf of the government reflects her personal legal philosophy,” said Lincoln Caplan, who wrote a book about the job, “The Tenth Justice.” “But you can definitely get a feeling from the briefs she submits and the arguments she makes in the Supreme Court for the legal approach she takes and her style of legal reasoning.”
It’s proper, of course, to question Kagan about her views on the issues raised in cases like Citizens United, although the truth is that a combination of post-Bork confirmation rules and judicial ethics are likely to result in a less-than-instructive answer. It’s a mistake, however, to assume that Elena Kagan, or any attorney, completely agrees with every position they’ve taken in a Court of law.