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Craig Parshall, General Counsel

 

Elena Kagan: Beyond Room 216

June 30, 2010

As I sat in the crowded Senate hearing room during Elena Kagan’s Supreme Court confirmation testimony this week, I was reminded once again of the important, yet very limited value of this public process. For articulate and personable nominees like Kagan, this legal and political “dance” can be mastered without many missteps. Indisputably a political liberal (she has admitted as much), Ms. Kagan nevertheless managed to nuance  questions from the Republicans deftly, falling back on the old bromide that she will be able to separate her political views from her judicial function. She will likely be confirmed. But as a justice she will, in my opinion, almost certainly vote for major erosions of basic First Amendment liberties of Americans. To appreciate this conclusion, though, we have to journey far beyond hearing room 216 in the Hart Senate building where the confirmation process is being conducted.

First are Ms. Kagan’s explicit writings and public statements – and there are many of them. Consider these: 

Hate Speech and Hate Crimes. At a faculty workshop at Harvard where she was the Dean of the Law School, she remarked that it would be perfectly legal to suppress speech simply because it was “emotionally assaultive.” That is precisely what we feared here at NRB when the Congress passed the federal hate crimes law last year – that the public voicing of opinions about homosexuality or certain religions could be criminalized simply because they are deemed “emotionally” disturbing to some adult listeners. She also advocated in a law review article that laws be expanded beyond even hate crimes in order to punish unpopular opinions. She proposed the creation of “hate torts” where advocates of unpopular opinions (deemed “hateful”) could be sued for money damages if they were found to have violated “hate crime” standards.

Government Control of Communication Platforms. Ms. Kagan has suggested in her scholarly writings that the federal government can lawfully control free speech “opportunities” among Americans if it is determined that one group or idea has a “disproportionate” share of a given communications venue. This collectivistic idea would give, say, the FCC the ability to restore the Fairness Doctrine, or to impose a myriad number of restraints on the free speech rights of broadcasters and communicators, as long as they are purported to serve as “corrective” measures designed to create a more ideal world of opinions and expressive opportunities. 

Free Speech and Harassment. Ms. Kagan has also written that free speech (even if it is nonviolent) could be suppressed by the government utilizing general laws against “harassment,” akin to the laws against “sexual harassment” in employment.

Then we have Elena Kagan’s political proclivity as a former domestic policy advisor to President Clinton. When we couple this with her liberal judicial worldview, I wonder whether we will see another Hugo Black; he was someone else with a broad political approach to certain legal issues, as an FDR confidant and a former U.S. Senator before becoming the Chief Justice decades ago. Black ended up authoring the notorious decision that hammered the concept of “separation of church and state” into the First Amendment, and later wrote the opinion in Engle v. Vitale, a decision that was disastrous for two reasons: it used faulty historical analysis to kick virtually all forms of prayer out of public schools, and it did so without bothering to cite in the opinion a single court case as precedent for the decision.

But we also have Elena Kagan the liberal academic, with her long-standing tenure as the head of the Harvard Law School. The Supreme Court has seen this kind of profile before. Justice Harry Blackmun was an adjunct law professor at two law schools, and combined with his jurisprudential liberalism (though not apparent until his later years on the Court), the result was the author of Roe v. Wade, a case that created legal havoc even aside from its shocking treatment of human life. Justice Blackmun was also a reliable proponent of the most extreme views of “separation of church and state.” 

Predictions are always dicey, but I am willing to take a chance here: on the issues that are important to the members and friends of our Association, Elena Kagan will probably give us a picture of the U.S. Constitution that many of us will not be able to recognize. Of course the sky will not fall, and the Republic will certainly endure her confirmation. But with more appointments like this, we might wonder what kind of Republic our children will inherit.