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.)
but you should hear what Stevens says about Kagan at his private tea parties.
Interesting catch on the Stevens connection in this article! I’d make a couple other observations about the content of Kagan’s article, which I found to be quite interesting, as well as very thoughtful and well-written.
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p>First, throughout the piece there’s a clear sense that law is not just about the courts, judicial review, and legal doctrine. As she puts it (p.2383), “much of what is important in administration occurs outside the courthouse doors.” The attentiveness to what is occurring in the law outside of the judiciary is perhaps the most important and best of Kagan’s qualities. It’s critical to have someone on the Court who respects and understands how the rest of the political process works, and not just how it affects legal doctrine and the work of the courts.
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p>Second, contrary to Glenn Greenwald’s claims, I don’t see much in here that suggests, as Greenwald does, that Kagan’s views are in some way similar to the “unitary executive” theories promoted by the likes of Dick Cheney and John Yoo. Indeed, in her conclusion, Kagan makes clear that:
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p>In fairness to Greenwald, he provides himself some wiggle room by acknowledging that Kagan’s views in this article are “many universes away from what Bush/Cheney ended up doing”. The problem is that he then goes on to build a case against Kagan based largely on a few people’s interpretations of Kagan, rather than Kagan’s writings themselves. He also suggests that “Kagan clearly sits on the end of strong assertions of executive authority — perhaps on the far end”, based on little actual evidence.
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p>Given the importance of Kagan’s alleged views on executive power to Greenwald’s overall anti-Kagan argument, the fact that this article does not say what Grennwald implies it does seriously weakens his case.
This is what Lessig says:
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p>Point, Lessig, I’d say.
that Greenwald’s criticisms of Kagan based on this article are fairly absurd. He has a better argument based on her confirmation hearings as Solicitor General, but even there, I think it’s perfectly plausible that she was basically telling Lindsey Graham what he wanted to hear in order to bring along a couple of GOP votes and avoid a political debacle. Greenwald has greatly overstated his case against Kagan, and now is in the awkward position of having to repeatedly assert that he has an open mind, even though he clearly doesn’t.
I think one of his main points has also been that because of Kagan’s thin paper trail, we don’t have a strong notion of what her views would be, so we have to rely on snippets such as her testimony to Lindsey Graham, which as you point out can be interpreted in different ways.
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p>Greenwald ought to keep an open mind, but the reverse is true too, in that it’s important for Dem Senators and activists to ask Kagan substantive questions and not assume that she’ll be fine because Obama picked her. If confirmed, Kagan may end up being a great justice, but I think it’s important for the Dems to ask serious questions about her views. This is a lifetime appointment, so it doesn’t seem unreasonable to want to have a very good idea of what we’re getting.
But I wouldn’t hold out too much hope for revelatory confirmation hearings. They’ve devolved into political theatre of the most embarrassing sort, and with 59 Democrats in the Senate, there’s just no upside for being overly open.
and recent history has certainly made a spectacle of just about any major confirmation hearing… but it is a lifetime appointment. Senators must do their due diligence on this. I don’t want a Supreme Court justice who will expand the already-bloated powers of the executive office. What the President’s office really needs is a giant nerf bat. Even Obama is not much better than Bush in his executive-power grab. No President will give up these powers voluntarily; we need to forcibly take them away, pretty much no matter what it takes. I don’t know what kind of justice Kagan will be, but I have a hard time imagining she’ll be that.
… of circumstances structurally bolster Greenwald’s concerns? If we agree that there should be good answers out of the confirmation process and that they aren’t going to come out, doesn’t it follow that we should be concerned about the overall lack of answers?
To be fair in the pre-Bork era confirmation hearings were probably too quick and Senators in both parties were too deferential to the president. But the post-Bork and really the post-Thomas era has seen these hearings devolve into a circus, it may not be a high tech lynching as Thomas said, but certainly a high tech circus.
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p>I have hope though that Finegold and a few other more independently minded progressives might ask really tough questions, he certainly asked tough questions of Sotomayor.
would the proposed Constitutional amendment ban me from burning this flag?
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p>followup: when on fire, could you tell the difference between this flag and the American flag?
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p>followup: if I burned a flag that looked an awful lot like the American flag but didn’t quite match the dimensions of the American flag, than I haven’t burned a proper American flag. Would that be OK?