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.