Elena Kagan on Free Speech, Executive Power, and Judicial Restraint

Will Obama’s Supreme Court pick show too much deference to the government?

Speaking to reporters last month aboard Air Force One, President Barack Obama dropped a strong hint about his plans to nominate Solicitor General Elena Kagan to replace retiring Supreme Court Justice John Paul Stevens. “It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically,” Obama said. “What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.”

Although he didn’t identify the decision by name, Obama was clearly talking about the Supreme Court’s landmark free speech ruling in Citizens United v. F.E.C. (2010), where the Court struck down federal restrictions on the political speech of corporations and unions. According to Obama and other liberal critics, Citizens United represents a naked act of conservative judicial activism, with the Court’s right-leaning majority ignoring the will of Congress and legislating their own views from the bench.

So by selecting Kagan—who famously chose to argue Citizens United as her very first appearance before the Supreme Court—Obama sent a clear message about the deferential role he wants the Court to play in future cases. And it didn’t take long for the president’s supporters to start spreading the word. “In the great battles over progressive regulations that will occupy the court for the next decade,” wrote New Republic legal correspondent Jeffrey Rosen, “Kagan will be a compelling advocate for liberal judicial restraint, insisting that congress and the administrative agencies deserve deference, and criticizing conservatives who seek to use the courts to reverse their political defeats.” Similarly, Doug Kendall, the founder and president of the liberal Constitutional Accountability Center, declared, “we expect General Kagan’s confirmation hearing to highlight the conservative judicial activism of the Roberts Court.”

As a political move, this emphasis on judicial restraint makes sense. The Patient Protection and Affordable Care Act—Obama’s signature domestic achievement—is likely to come before the Supreme Court in the near future. Naturally, the president would like the Court to rubber stamp his health care plan.

But will Justice Kagan practice the judicial deference that Obama preaches? There’s some troubling evidence that suggests she will. For example, during the first round of Supreme Court oral arguments in Citizens United, Deputy Solicitor General Malcolm Stewart made the shocking claim that nothing in the First Amendment prevented the government from banning corporate-funded political books. When Kagan appeared before the Court several months later for the second round of arguments, she offered an unconvincing semi-retraction of her deputy’s statement. “What we’re saying is that there has never been an enforcement action for books,” Kagan told the justices. “Nobody has ever suggested—nobody in Congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem.” In other words, trust us. But as Chief Justice John Roberts correctly observed, “we don't put our First Amendment rights in the hands of FEC bureaucrats.”

Unfortunately, the Democrats who control the Senate Judiciary Committee aren’t likely to worry about that form of pro-government judicial deference. But perhaps they’ll pay closer attention to Kagan’s views on executive power. In her celebrated 2001 Harvard Law Review article “Presidential Administration,” Kagan offered a detailed account of the increase in presidential power that followed the growth of federal regulatory and administrative agencies in the 20th century. As the human rights attorney Scott Horton has observed, Kagan “pays lip service to the limitations on executive authority contained in the Constitution, but she’s generally in the thrall of executive power.”

That’s not something that could be said about Justice John Paul Stevens, who, despite many significant shortcomings, emerged as a forceful opponent of George W. Bush’s sweeping claims of “inherent” executive authority. In 2006’s Hamdan v. Rumsfeld, for instance, Stevens wrote a powerful majority opinion declaring Bush’s use of military tribunals for Guantanamo detainees to be unconstitutional. Yet as the respected legal commentator Stuart Taylor Jr. pointed out this week, “Kagan's record suggests that she probably falls to the right of Stevens—arguably the most liberal current justice—at least on the presidential-power and war-on-terror issues that may be more important than any others that come before the justices in our times.”

It’s certainly possible that Elena Kagan will put these and other concerns to rest before her confirmation hearings come to a close. But as things stand now, she appears all too willing to give the government the benefit of the doubt.

Damon W. Root is an associate editor of Reason magazine.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    Okay, now that I have everyone's attention:

    Release the Kagan!

  • JazzPiano (Jamie Kelly)||

    If we cut off Obama's head and point it at the little troll, will she turn to stone?

  • ||

    In theory, yes.

  • &||

    What page was that on?

  • ||

    Of course the Kraken has better teeth.

  • ||

    Release the Kagan!

  • ||

    Will Obama’s Supreme Court pick show too much deference to the government?

    Every justice presently on the court shows too much deference to the government.

  • ||

    I agree. The US Constitution is to limit the federal government. It is the PEOPLE'S rules that the government must adhere to. Every judge who sits on that panel should already have decided for the people and be convinced to change their mind.

  • ||

    "Go ahead and stand up, Ms. Kagan!"

  • ||

    But she has no neck!

  • Fiscal Meth||

    The Supreme court is a ripoff. It's just just like the regular court but they add tomatoes and sour cream and charge like 45 cents more.

  • ||

    Stupendous.

  • Anonymous Backstabber||

    Are you kidding? Do you see how much they charge for a side of sour cream or guac? They put almost as much on the supreme: for 45 cents it's totally worth it.

  • Fiscal Meth||

    Sour cream is a basic fundamental human right. The court supreme should know that better than anyone.

  • ||

    I just cannot get beyond how profoundly, criminally ugly that woman is.

  • ed||

    That's probably why she didn't become a weather girl.

  • Wegie||

    No, being a weather girl takes a small amount of inlelligence.

  • ||

    When all else fails, fall in love with the government.

  • Stretchy||

    Like all justices, they'll be deferential to presidential power when 'their guy' is in office and skeptical when 'the other guy' is in power. The supreme court is little more than a partisan political body.

  • Matt Case||

    Agreed, but this is a partisan political body we have no power to alter once approved.

  • Warty||

    Let me be clear: Chipotle totally fucking sucks. I want some fucking guacamole, and I fucking want it for fucking free, you fucking assholes. And quit fucking being so fucking chintzy with the fucking meat.

  • ||

    I'm still laughing that you actually went in one of those places. I knew you were a boor and a knave, but a philistine as well? It just doesn't get any better.

  • Warty||

    Not all of us get to live in places that have functioning Mexican communities. The closest I have is Puerto Ricans, and they can't cook for shit.

  • T||

    Hey, Epi, give the guy a break. How's he gonna know the food sucks if he doesn't try it? Of course, it does sound like he's been more than once, which I can't condone. Once was enough to convince me it was fucking horrible.

  • ||

    How's he gonna know the food sucks if he doesn't try it?

    How about the sign on the door that says "free buttplugs with every purchase"?

  • ||

    How about looking at the fucking menu? sage's comment also stands.

  • T||

    What, burrito automatically says bad food? Maybe in the Pacific Northwest, but I live where we make good Tex-Mex.

  • ||

    There is an art to menu reading; most menus don't just say "burrito", they say something like "shredded beef burrito with chunky corn salsa and guacamole".

    I can guarantee you that the Chipotle's menu words stuff just like Chili's, The Olive Garden, Applebee's, and all the other horrible chain restaurants. Do they have flair on the wall? That's also a sign to get the hell out.

  • The Art-P.O.G.||

    I like Chipotle, but then I don't live on the West Coast. Episiarch, you're such a snob.

  • ||

    Yes I am, Art. Yes I am.

  • The Art-P.O.G.||

    Sweet. You really do wear the monocle and tophat and you do carry an alpacca top walking stick.

  • ||

    One of the benefits to all of the immigration from Mexico is that there are a ton of family-run Mexican restaurants and even small chains.

    Vallarta's in Tampa is a decent place, though it's not Mexico-Mexican good. I had some mindblowingly good food in Cabo, which changed my thinking about what Mexican food could be.

  • ||

    They do suck. I shouldn't have to tell someone not to put rice in my burrito. But, Chipotle is where you often end up when going out for a quick lunch with a group at work. I've only paid to eat there once. I rate them below Taco Bell.

    Local joints with real Mexican Mexicans, mismatched tables and chairs, surface mounted conduit, and bad paint jobs are where the best food is found. Be careful if you ask for ice water - you might get horchata (rice water). My current favorite spot is cash-only.

  • Xeones||

    Chipotle totally fucking sucks.

    I ate there once. Never has a meal moved through my digestive tract so quickly. I had to pinch-run up three flights of stairs at a Barnes'n'Noble to get to a bathroom, and barely made it. NEVER AGAIN

  • Ewww||

    That was you?

  • ||

    Never has a meal moved through my digestive tract so quickly. I had to pinch-run up three flights of stairs at a Barnes'n'Noble to get to a bathroom, and barely made it.

    Is that an endorsement?

  • ||

    Did you get some Chipotl-away to clean out the blood stains from your underwear?

  • ||

    Thanks for the visual.

  • The Art-P.O.G.||

    That was a great episode.

  • ||

    What I never understood was the Chipotle in Bellevue, which was always overrun with howling yuppie spawn. It didn't strike me as the sort of restaurant where you'd take a finicky 6-year-old, but I don't drive a BMW, so go figure.

  • Fiscal Meth||

    Chipotle and other corporations should not be allowed to selfishly profit off your guacamole needs and then turn around and use the guaca-profit to fund political speech with which they buy the elections so that they can continue to charge whatever they want for these basic needs and the supreme court always shuts down any attempts at regulation because they too charge 45 cents for sour cream. The democratic process is dead.

  • Bingo||

    Condiments are a fundamental human right and all condiments should be treated equally.

  • Fiscal Meth||

    Some condiments are more equal than others, especially ones that are applied with a caulking gun.

  • ||

    "But sir, we use only the finest food grade caulk guns in this establishment"

  • ||

    I'm just trying to figure out how long it will take for everyone to figure out that Elena Kagan is just Kevin James in drag.

    Here is the proof: http://www.sanfranciscosentine.....-kagan.jpg

  • ed||

    Her fat rolls have fat rolls.

  • ||

    We have a new candidate for the Hypnotoad look-alike.

  • ||

    Maybe they are getting ready to write Obama into the new episodes, and Kagan is going to play his "Agnew". Figure she can work her hypnotoad powers on the population as his right hand man.

  • TickleStick||

    More like deadly Mexican Staring Frog.

  • Pip||

    More like Java the Hutt

    http://www.starstore.com/acatalog/Jabba_Hutt-Sideshow-l.jpg

  • The Art-P.O.G.||

    The Kevin James resemblance is uncanny. Yepper's right.

  • ||

    of Southern Sri Lanka

  • Barrack Obama||

    I don't see you guys rating
    The kind of mate I'm contemplating
    I'd let you watch, I would invite you
    But the queens we use would not excite you

  • ||

    What Queens? The King of Queens? Proof of my theory!

  • hummer||

    Thank you. Now it's stuck in my head.

  • ||

    Obama and Bush is work with Iran to enslave those who speak out against the regime in Iran.

    http://www.cbn.com/cbnnews/wor.....l-Police-/

  • Rachel Maddow||

    Well I think she's just adorable.

  • ||

    What's not to like?

  • Roger Murdock||

    "What do you want Kagan?"

    "Your head...and the prize."

  • ||

    Oh, good one. The Kurgan.

    Release the Kurgan!

  • The Art-P.O.G.||

    Fucking awesome reference(s).

  • ||

    That Roger Murdoch is a wise man and one of the greatest centers to play the game.

  • Carston||

    and Obama nominates his second overweight, over-smiley woman to the Supreme Court. Am I the only one who has come to the realization he is into chubby chicks?

  • zoltan||

    Can you imagine what they'll look like next to Ruth Bader Ginsburg? That woman looks like Skeletor's grandmother.

  • ||

    The philosophy that a judge should be deferential to the crown is one reason why the framers did not grant the state a monopoly on the administration of justice. There is no language in the constitution that states that the federal government shall have a monopoly on the administration of justice just as there is no founding era state constitution that purported to give such state such a monopoly.

    Such facts may not conform to the sheeple's narrative that utter bedlam and chaos and disorder would ensue without such a monopoly.

  • &||

    -10 for saying sheeple.

  • Jessie Jackson||

    For now on we will no longer be referred to as sheeple. The correct term is Kelp Herder. We are the Kelp Herder Nation, you Global Warming denialist.

  • CE||

    In a word, yes.

  • CE||

    I love Chipotle, and I hate guacamole. I'm glad I don't have to subsidize everyone else's guacamole cravings.

  • ||

    hey check out this politics site i think u guys might like it

    ThePartisanDialogues.com

  • Wegie||

    "Will Obama’s Supreme Court pick show too much deference to the government?"
    Of course.

  • Publius||

    You people ripping on Chipotle are idiots.

    I have been a professional chef for 25 years. Fine Dining, even. And Chipotle's food is as real as any other Tex-Mex, and created in much more sanitary conditions than most of it.

    I know people love mom and pop places run by 'real' Mexicans, because it is more 'authentic'. But the fact is that many if not most of these smaller places have problems that Chipotle will never have: old, cheap, questionably fresh meat, time and temperature abuses, and the inconsistency that results from people not quite knowing what they are doing.

    I mean, hate on MacDonald's and Arby's all you want, but Chipotle is consumer capitalism at it's finest.

    Pinche Liberones, the lot of you.

  • ||

    +1

  • MooKao||

    Sorry, but the guy who made the 'rice in my burrito' comment was right. I also like to taste something besides cilantro in what I'm eating. Yes, the authentic mex places can be a bit shady, but that doesn't mean Chipotle is good.

    Also, Arby's is AMAZING. Way to ruin your credibility there, chef.

  • ||

    In democratic societies like the United States, the voting process is a means by which citizens hold their government accountable, conflicts are channeled into resolutions, and power transfers peacefully. Our system of representative government works only when honest ballots are not diluted by fraudulent ballots. When elections become corrupted, democracy becomes threatened.
    The FBI has a limited role in ensuring fair and free elections in the United States. Election crimes become federal cases when:
    The ballot includes one or more federal candidates;
    The crime involves an election official abusing his duties;
    The crime pertains to fraudulent voter registration;
    Voters are not U.S. citizens.
    First Name: kenyan born at the white house
    Last Name: TRUTH
    Address: AMERICA
    Address: INPEACH OBAMA
    City: USA
    State: usa THE END OF AMERICA
    NPR archive describes Obama as 'Kenyan-born'
    Michelle say Barack born in Kenya
    Obama's grandmother say he was born in Kenya
    Subject: OBAMA SAID approval ratings are still very high in the country of my birth.
    Message: INPEACH OBAMA TO THE WEAK-KNEED REPUBLICANS AND DEMOCRAT
    obama people have no idea of the extent to which they have to be gulled in order to be led." "The size of the lie is a definite factor in causing it to be believed, for the vast masses of the nation are in the depths of their hearts more easily deceived than they are consciously and intentionally bad. The primitive simplicity of their minds renders them a more easy prey to a big lie than a small one, for they themselves often tell little lies but would be ashamed to tell a big one." "All propaganda must be so popular and on such an intellectual level, that even the most stupid of those towards whom it is directed will understand it. Therefore, the intellectual level of the propaganda must be lower the larger the number of people who are to be influenced by it." "Through clever and constant application of propaganda, people can be made to see paradise as hell, and also the other way around, to consider the most wretched sort of life as paradise. "pelosi don't see much future for the Americans ... it's a decayed country. And they have their racial problem, and the problem of social &^% ...obama feelings against Americanism are feelings of hatred and deep repugnance ... everything about the behaviour of American society reveals that it's half &^%, and the other half &^& How can one expect a State like that to hold TOGTHER.They include the angry left wing bloggers who spread vicious lies and half-truths about their political adversaries... Those lies are then repeated by the duplicitous left wing media outlets who “discuss” the nonsense on air as if it has merit… The media's justification is apparently “because it's out there”, truth be damned. State: *usa Obama chuckles at America*
    If YOU PASS THE NORTH KOREAN BORDER ILLEGALLY YOU GET 12 YRS HARD LABOR, YOU PASS THE AFGHAN BORDER ILLEGALLY YOU GET SHOT. Under the Mexican law, illegal immigration is a felony, punishable by up to two years in prison,There is no immigration allowed in China, India, Bangladesh, Russia, Japan, Cuba, Saudi Arabia, Iran, Syria, Turkey and MOST other countries YOU PASS THE AMERICAN BORDER ILLEGALLY YOU GET A JOB, DRIVER'S LICENSE, ALLOWANCE FOR A PLACE TO LIVE, HEALTH CARE, EDUCATION, BILLIONS OF DOLLARS SPENT SO YOU CAN READ A DOCUMENT. WE CARRY PASSPORTS IN OTHER COUNTRIES OR FACE JAIL TIME. REPOST THIS IF YOU AGREE!! ((STOP COMMUNIST OBAMA)) THE COMMANDER

  • ||

    a lot of nothing-- ttfn

  • Roger||

    Just out of curiosity, why doesn't the doctrine of separation of powers prevent a lawyer from holding a political office? After all if one *must* be a lawyer to be on the Supreme Court, isn't equally valid that one *must not* be a lawyer to hold any of the other positions in Government including the President. I believe it is this incestuous relationship is one of the causes of the problems we are facing. for example, here in Michigan, we have nearly all positions of government held by people with law degrees and 12 consecutive years of economic decline- there is however a vast increase in new regulations. But is it any wonder every problem looks like a nail when every tool in the shed is a hammer?

  • ||

    TO ALL THE COMMUNIST IN THE IG,FBI,CIA, President Obama Tells Mexican President We are Not Defined by Our Borders INPEACH OBAMA THE COMMUNIST ,GOD OPEN YOUR EYES.///For us there are only two possiblities: either we remain american or we come under the thumb of the communist OBAMA. This latter must not occur; TO THE WEAK-KNEED REPUBLICANS AND DEMOCRAT .THE COMMANDER

  • ||

    TO ALL THE COMMUNIST IN THE IG,FBI,CIA,AND U.S. Senators,, President Obama Tells Mexican President We are Not Defined by Our Borders INPEACH OBAMA THE COMMUNIST ,GOD OPEN YOUR EYES.///For us there are only two possiblities: either we remain american or we come under the thumb of the communist OBAMA. This latter must not occur; TO THE WEAK-KNEED REPUBLICANS AND DEMOCRAT .THE COMMANDER

  • ||

    President Obama Tells Mexican President "We are Not Defined by Our Borders"INPEACH OBAMA In democratic societies like the United States, the voting process is a means by which citizens hold their government accountable, conflicts are channeled into resolutions, and power transfers peacefully. Our system of representative government works only when honest ballots are not diluted by fraudulent ballots. When elections become corrupted, democracy becomes threatened.
    The FBI has a limited role in ensuring fair and free elections in the United States. Election crimes become federal cases when:
    The ballot includes one or more federal candidates;
    The crime involves an election official abusing his duties;
    The crime pertains to fraudulent voter registration;
    Voters are not U.S. citizens.
    First Name: kenyan born at the white house
    Last Name: TRUTH
    Address: AMERICA
    Address: INPEACH OBAMA
    City: USA
    State: usa THE END OF AMERICA
    NPR archive describes Obama as 'Kenyan-born'
    Michelle say Barack born in Kenya
    Obama's grandmother say he was born in Kenya
    Subject: OBAMA SAID approval ratings are still very high in the country of my birth.
    Message: INPEACH OBAMA TO THE WEAK-KNEED REPUBLICANS AND DEMOCRAT
    obama people have no idea of the extent to which they have to be gulled in order to be led." "The size of the lie is a definite factor in causing it to be believed, for the vast masses of the nation are in the depths of their hearts more easily deceived than they are consciously and intentionally bad. The primitive simplicity of their minds renders them a more easy prey to a big lie than a small one, for they themselves often tell little lies but would be ashamed to tell a big one." "All propaganda must be so popular and on such an intellectual level, that even the most stupid of those towards whom it is directed will understand it. Therefore, the intellectual level of the propaganda must be lower the larger the number of people who are to be influenced by it." "Through clever and constant application of propaganda, people can be made to see paradise as hell, and also the other way around, to consider the most wretched sort of life as paradise. "pelosi don't see much future for the Americans ... it's a decayed country. And they have their racial problem, and the problem of social &^% ...obama feelings against Americanism are feelings of hatred and deep repugnance ... everything about the behaviour of American society reveals that it's half &^%, and the other half &^& How can one expect a State like that to hold TOGTHER.They include the angry left wing bloggers who spread vicious lies and half-truths about their political adversaries... Those lies are then repeated by the duplicitous left wing media outlets who “discuss” the nonsense on air as if it has merit… The media's justification is apparently “because it's out there”, truth be damned. State: *usa Obama chuckles at America*
    If YOU PASS THE NORTH KOREAN BORDER ILLEGALLY YOU GET 12 YRS HARD LABOR, YOU PASS THE AFGHAN BORDER ILLEGALLY YOU GET SHOT. Under the Mexican law, illegal immigration is a felony, punishable by up to two years in prison,Mexicans who help illegal immigrants are considered criminalsThere is no immigration allowed in China, India, Bangladesh, Russia, Japan, Cuba, Saudi Arabia, Iran, Syria, Turkey and MOST other countries YOU PASS THE AMERICAN BORDER ILLEGALLY YOU GET A JOB, DRIVER'S LICENSE, ALLOWANCE FOR A PLACE TO LIVE, HEALTH CARE, EDUCATION, BILLIONS OF DOLLARS SPENT SO YOU CAN READ A DOCUMENT. WE CARRY PASSPORTS IN OTHER COUNTRIES OR FACE JAIL TIME. REPOST THIS IF YOU AGREE!! ((STOP COMMUNIST OBAMA)) THE COMMANDER

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  • cheapest ugg boots online||

    When I lived there in early 90s, I think it was close to parity with the US. Its disappointing to me that they have done so poorly since. I blame joining the UN.

  • ปลวก||

    The US Constitution is to limit the federal government. It is the PEOPLE'S rules that the government must adhere to.

  • RAN||

    I have been a professional chef for 25 years. Fine Dining, even. And Chipotle's food is as real as any other Tex-Mex, and created in much more sanitary conditions than most of it. | RAN ran ran แรน แรน แรน |

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