Much has been said about the fact that Elena Kagan doesn’t have a huge paper trail. There’s at least one major exception to that: a 141-page behemoth of a law review article, entitled “Presidential Administration.” The article, which is a long, interesting (if you’re into that kind of thing), and complicated discussion of presidential control of administrative agencies, has already figured prominently in discussions of what kind of decisions a Justice Kagan would write, and no doubt will continue to do so as more people have the time to dissect it.
I’m still wading through the thing. But I did notice something interesting. Kagan, like many legal academics, feels free to criticize Supreme Court decisions that she sees as having been poorly written, unconvincing, or otherwise sub-standard. Here are a couple of examples from the article (emphasis mine).
In Clinton v. City of New York, the Court reviewed a challenge to the Line Item Veto Act…. [T]he Court held that the Act violated the “finely wrought” procedures of Article I, Section 7 of the Constitution by authorizing the President unilaterally to repeal parts of enacted statutes. The two dissenting opinions in the case, however, demolished this claim by pointing out the technical adherence of the Act’s cancellation mechanism to this constitutional provision….
The dissents “demolished” the central claim of the majority opinion – pretty strong words. Here’s another.
The Court’s reasoning in Hampton [v. Mow Sun Wong] was notably opaque and the scope of its suggestion on this score correspondingly uncertain.
“Notably opaque.” In other words, so badly written that even a Harvard law professor can’t figure out what it actually says.
Harsh criticism in both cases. And the author of both majority opinions? Justice Stevens.
Two examples hardly make a pattern, especially when we’re talking about a Justice who has written many hundreds of opinions over the 30-plus years he has been on the Court. Still, it’s a funny coincidence that the two clear instances of opinion criticism I could find in Kagan’s largest law review article happen to be directed at opinions written by the guy she’s been nominated to replace.
UPDATE: UCLA law professor Eugene Volokh observes that Kagan thinks Stevens got the flag-burning cases wrong. (As do I, for whatever that’s worth.)