The day before President Obama nominated Elena Kagan to the Supreme Court, I wrote a long blog post raising questions about Elena Kagan’s support for or opposition to Citizens United and Turner Broadcasting–that is, her support of or opposition to the constitutionality of certain campaign finance and media/telecom rules, respectively. My main point was that her scholarship–notably several pages of discussion in one of her major law review articles, published in the mid-1990s—shows considerable sympathy for the largest corporations’ arguments on both issues of campaign finance and media rules. Said another way, she appeared to agree more with Justices Scalia, Thomas, and Roberts than with Justice Stevens and Obama on them. I posted this long discussion both at Balkinization and the Huffington Post, which was kind enough to front-page the post.
The day after the post, President Obama nominated Elena Kagan, as expected. In praising Kagan, Obama specifically mentioned that she chose Citizens United as her first case to argue, despite long odds of victory. He said, “I think it says a great deal about her commitment to protect our fundamental rights, because in a democracy powerful interests must not be allowed to drown out the voices of ordinary citizens.”
I said that I assumed the President’s team naturally vetted Dean Kagan on these issues.
Also, my evidence was (I thought) highly suggestive, but not necessarily definitive, of her views in the 1990s, and she may have changed her mind since.
These discussions with press prompted me to read and re-read Kagan’s free speech scholarship. I didn’t find anything in that scholarship pointing in the opposite direction of my initial, limited conclusions.
But the press questions and the scholarship review prompted a few additional thoughts.
Most of these thoughts are not so much criticisms of Kagan per se; they are more like attempts to explore some of her thoughts (or her thoughts from 15 years ago!).
I hope to write them up soon… They’re mainly thoughts (1) on the “anti-distortion rationale,” which Dean Kagan abandoned in her argument in Citizens United, and (2) her thoughts on media like books and broadcasting, which also came up in Citizens United.