Elena Kagan on Government Reform



AZ mail-in restrictions violate Voting Rights Act

Arizona voting restrictions challenged as violations of Section 2 of the Voting Rights Act. First, voters casting their votes on Election Day outside their precinct are not counted. Second, mail-in ballots cannot be collected by anyone other than an election official, a mail carrier, or a voter's family or household member. The court held, 6-3, that these restrictions did not violate the Act nor were they racially discriminatory.

Dissenters argued that the Court's narrow reading weakened the law and disregarded its intent to address disparities in how election laws affect different racial groups. The rule discarding "out of precinct votes" impacted black and Hispanic voters, with Arizona leading the country in discarding such votes. Restrictions on vote collection makes voting more difficult for Native Americans.

Elena Kagan wrote the dissent, joined by Stephen Breyer and Sonia Sotomayor.

Source: NPR commentary on 2021 SCOTUS rulings , Jul 1, 2021

Allow curbside voting & loosen rules during pandemic

The U.S. Supreme Court in a 5-4 decision blocked a lower court ruling allowing curbside voting in Alabama and waiving some absentee ballot requirements during the COVID-19 pandemic. Conservative justices granted Alabama's request to stay a federal judge's order that would allow local officials to offer curbside voting in the July runoff and loosen absentee ballot requirements in three of the state's large counties.

The court rulings stem from a lawsuit filed by the NAACP, the Southern Poverty Law Center and the Alabama Disabilities Advocacy Program. A group of voters had sought more voting options because of health concerns.

A District Judge issued a preliminary injunction after finding that Alabama's election rules will cause sick or elderly voters to "likely face a painful and difficult choice between exercising their fundamental right to vote and safeguarding their health, which could prevent them from casting a vote in upcoming elections." Alabama appealed the decision.

Source: Time magazine: Dissent on MERRILL v ALABAMA, No. 19A1063 , Jul 3, 2020

Voting Rights Act still needed to prevent discrimination

In Shelby County v. Holder, the Supreme Court struck down the section of the Voting Rights Act which established a formula for determining if a state requires prior approval before changing its voting laws. Nine states with a history of discrimination must still get clearance from Congress before changing voting rules to make sure racial minorities are not negatively affected--this section was made toothless. Chief Justice Roberts said the formula Congress now uses, which was written in 1965, has become outdated. Justice Ginsburg, dissenting, said, "Hubris is a fit word for today's demolition of the VRA."

OnTheIssues explanation: This ruling led to a spate of "Voter ID" laws, which proponents claim is needed to protect the integrity of the vote, and which opponents say discriminates against youth & minority voters.

Opinions:Majority: Roberts, Scalia, Kennedy, & Alito; concurrence: Thomas; dissent: Ginsburg, Breyer, Sotomayor, & Kagan.

Source: InfoPlease.com on 2013 SCOTUS docket #12-96 , Jun 25, 2013

I believed in opposing Citizens United, but we lost

Q: In Citizens United, the Supreme Court held that individuals who band together in corporate form to express a political message cannot be banned from doing so in the months preceding an election. Do you think the Citizens United decision represents a return to the [past]?

KAGAN: I argued Citizens United before the Supreme Court on behalf of the United States, and as an advocate in that case I was convinced of the strength of the government's arguments. Those arguments are best expressed in the government's supplemental briefs in the case. The Court ruled against the government, and that decision is a precedent of the Court. If confirmed, I would give Citizens United full stare decisis effect. I would evaluate arguments in any future case on this issue as an independent, impartial judge, not as an advocate for the government

Source: ScotusBlog.com on Elana Kagan confirmation hearing , Jul 9, 2012

Judges should advance democracy, human rights, & rule of law

An article identifies Kagan's judicial heroes and thereby makes her approach clear: According to Human Events, "The President's nominee to the Supreme Court, Elena Kagan, called Aharon Barak "my judicial hero. He is the judge who has best advanced democracy, human rights, the rule of law, and justice."

One of the troubling things about Kagan's 2006 statement is her assumption that the role of judges is to "advance" abstract concepts and values, rather than faithfully apply the law that they have been given by the people through the Constitution or statutes passed by legislatures.

So who is Aharon Barak? Barak is the retired chief judge of the Supreme Court of Israel, and is considered one of the most liberal activist judges in the entire world, according to leading judges across the political spectrum.

Source: Tea Party Patriots, by M.Meckler & J.B.Martin, p.174 , Feb 14, 2012

Commerce clause does not apply to non-economic activities

[At CPAC, Sen. Paul cited] Sen. Tom Coburn's hypothetical question about whether the government through the commerce clause could regulate that you eat three vegetables a day. Kagan's response was not "yes." She outlined precedents set by the Supreme Court and how the commerce clause has been applied, but she did not give a response to Coburn's hypothetical question about vegetables.

Kagan, June 29, 2010: "The commerce clause has been interpreted broadly. It's been interpreted to apply to regulatio of any instruments or channels of commerce, but it's also been applied to anything that would substantially affect interstate commerce. It has not been applied to non-economic activities, and that's the teaching of Lopez and Morrison, that the Congress can't regulate non-economic activities, especially to the extent that those activities have traditionally been regulated by the states. And I think that that would be the question that the court would ask with respect to any case of this kind."

Source: FactCheck.org on 2011 Conservative Political Action Conf. , Feb 15, 2011

Strong executive lets president press his agenda

Kagan's only significant discussion of executive power comes in her article published in 2001 in the Harvard Law Review. The article is concerned with the President's power in the administrative context--i.e., the President's ability to control executive branch and independent agencies. That kind of power is concerned with, for example, responses to the Gulf oil spill and the economic crisis.

The article does not assert that the President has "power" over the other branches of government in the constitutional sense--i.e., a power that cannot be overridden. To the contrary, Kagan "accepts Congress' broad power to insulate administrative activity from the President." She instead makes the descriptive claim "that Congress has left more power in Presidential hands than generally is recognized."

Kagan does believe that presidential control over the agencies is a good thing. She explains that a progressive President needs control over the agencies to press his agenda.

Source: ScotusBlog.com, "9750 Words on Elena Kagan" , May 8, 2010

Aggressive advocate for campaign finance reform

Kagan has already distinguished herself as an aggressive advocate for campaign finance reform. The first case Kagan argued as solicitor general was Citizens United v. Federal Elections Committee. It was one of the cases Obama referenced when he said, "In a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens." In one fell swoop, the Court upended decades of campaign finance laws that kept corporations and their unlimited financial resources out of the political process. Kagan argued that if Roberts and the other conservative justices had their way, which they ultimately did, the voice of the ordinary American would simply be overpowered by the deep pockets of corporate America. This issue is not going away anytime soon. In one way or another, it will be before the Court in the coming years and the next justice will play a critical role in the outcome.
Source: Josh Gottheimer in US News & World Report, "5 Reasons" , Apr 9, 2010

Public campaign finance can fund based on opponent spending.

Justice Kagan wrote the dissent on AZ FREEDOM CLUB PAC v. BENNETT on Jun 27, 2011:

An Arizona public campaign financing law allowed a person who agreed to the restrictions of a publicly financed campaign to receive an initial allotment from the state. That initial allotment was increased when the spending of a privately financed opponent together with the spending of any independent group exceeded that initial allotment. The public funds to match opponent expenditures topped out at two times the initial allotment.

HELD: Delivered by Roberts; joined by Scalia, Kennedy, Thomas & Alito

Arizona's public financing law places a burden on privately financed candidates. If privately financed candidates spend money above a certain level, they necessarily entitle their publicly financed opponents to greater funding. Their First Amendment right to free speech in a political matter--which includes spending money on their campaigns--is inhibited. Independent groups do not qualify for public financing at all, but their spending still may lead to a funding increase for the candidates the independent groups oppose. Leveling the playing is not a compelling state interest justifying a burden on a First Amendment right, nor is combating corruption. Arizona would be free to give the maximum amount to all public candidates, but that does not justify inhibiting the free speech of candidates and independent groups.

DISSENT: Kagan dissents; joined by Ginsburg, Breyer, and Sotomayor

The First Amendment's core purpose is to foster a political system full of robust discussion and debate. Arizona's public campaign finance did not restrict speech, it increased speech through public subsidy with the goal of decreasing the corruption of both quid pro quo campaign payments made in exchange for official acts or an office seeker feeling beholden to his great financial supporters. Any burden on free speech, the burden could hardly be more substantial than what the Court announces would be legal: a larger, up-front allotment to a public candida
Source: Supreme Court case 11-AZ-PAC argued on Mar 28, 2011

Other Justices on Government Reform: Elena Kagan on other issues:
Samuel Alito(since 2006)
Amy Coney Barrett(since 2020)
Stephen Breyer(since 1994)
Neil Gorsuch(since 2017)
Ketanji Brown Jackson(nominated 2022)
Elena Kagan(since 2010)
Brett Kavanaugh(since 2018)
John Roberts(since 2005)
Sonia Sotomayor(since 2009)
Clarence Thomas(since 1991)

Former Justices:
Merrick Garland(nominated 2016)
Ruth Bader Ginsburg(1993-2020)
Anthony Kennedy(1988-2018)
Antonin Scalia(1986-2016)
John Paul Stevens(1975-2010)
David Souter(1990-2009)
Sandra Day O'Connor(1981-2006)
William Rehnquist(1975-2005)

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Page last updated: Mar 21, 2022