Litigation

Kagan in Line With Justice Stevens on Free Speech?

By Peter Hardin

Legal experts are questioning whether Supreme Court nominee Elena Kagan is in agreement with the justice she would succeed, John Paul Stevens, on weighty free speech and campaign finance regulation issues.

A Politico article examined the issue using the Supreme Court’s blockbuster Citizens United decision as its focus.

President Obama has repeatedly criticized the high court decision that permits unlimited corporate spending on elections, and he mentioned Kagan’s role arguing the government’s case as U.S. solicitor general when he nominated her.

Yet neither Kagan’s role in arguing the case nor her scholarly writings “have given supporters of strict campaign finance rules much confidence that she shares their views ? or Obama?s ? on the subject,” Politico reported. It went on to quote Marvin Ammori, a specialist in First Amendment law, teaching at the University of Nebraska-Lincoln.

?Looking at Elena Kagan’s scholarship, I doubt she agrees with Barack Obama and Justice Stevens ? and suspect she is a defender of corporate speech rights,?  Ammori wrote in Huffington Post.

This weekend a New York Times article broadened the scope and asserted that Kagan’s First Amendment writings hold “indications…that her views on government regulation of speech were closer to the Supreme Court’s more conservative justices, like Antonin Scalia,” than to Justice Stevens.

The Times article examined Justice Stevens’ majority opinion in a case upholding a government ban on broadcasting the so-called “seven dirty words” monologue of George Carlin, and his dissent in a decision that threw out a state law making it a crime to burn the flag.  “There is good reason to think Ms. Kagan disagreed with Justice Stevens in both cases,” it reported.

?Her articles on free speech showed a strong sense of the importance of civil liberties as a bulwark against ideological orthodoxy ? a perspective that will give her ready camaraderie with free speech devotees on the court like Justices Scalia, Kennedy and Thomas,?  said Kathleen Sullivan, a former Stanford Law School dean.

On the political front, meanwhile, Kagan gained several new endorsements:

• From conservatives Michael McConnell, a former federal appeals court judge nominated by President George W. Bush, and Miguel  Estrada, nominated unsuccessfully for the federal bench by Bush, USA Today reported.
• From the NAACP, according to the Associated Press.

To learn more about Kagan?s nomination, see Gavel Grab and the Justice at Stake ?Replacing Justice Stevens? page.

Full post as published by The Gavel on May 17, 2010 (boomark / email).