Kagan's first steps on the Court

In two important cases, the newest Justice refuses to join with Ginsburg and Sotomayor

By Glenn Greenwald
Published October 13, 2010 2:14PM (UTC)
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Since Elena Kagan was confirmed as a Justice of the Supreme Court, the Court has not yet issued any written rulings on appeals it has accepted for review.  But there are two cases in which Kagan's actions shed some minimal light on how she is approaching her role -- minimal, though still worth noting, particularly in light of how much time and attention was devoted here to her being named as Justice Stevens' replacement.

On September 23, 41-year-old convicted murderer Teresa Lewis became the first woman executed in the United States in over five years, when the State of Virginia administered a lethal injection into her arm.  That occurred only because the Supreme Court, two days earlier refused, by a 7-2 vote, to stay her execution.  Lewis' lawyers argued that execution was unjust because "she is borderline mentally retarded, with the intellectual ability of about a 13-year-old," because she "had been used by a much smarter conspirator," because she had no prior history of violence and had been a model prisoner, and because "the two men who fired the shots received life terms."  The two "liberal" justices on the Court -- Ginsburg and Sotomayor -- voted to stay the execution, but Elena Kagan voted with Scalia, Thomas, Alito, Roberts, Kennedy, and Breyer to allow it to proceed. It's impossible to know for certain how Justice Stevens would have voted, but he did proclaim in a 2008 decision that he believes the death penalty to be unconstitutional pursuant to the Constitutional bar on "cruel and unusual punishment".

Yesterday, a similar pattern emerged.  In 2005, two Denver residents were removed from a Bush campaign event solely due to a bumper sticker on their car which read:  "No More Blood for Oil."  They sued, alleging their First Amendment rights had been violated, but the lower court dismissed the case and the appeals court upheld the dismissal.  The Supreme Court yesterday refused to review that dismissal, but in a fairly unusual written opinion dissenting from that refusal, Ginsburg -- joined by Sotomayor -- argued that these ejections constituted a clear violation of these citizens' First Amendment rights which the Court should adjudicate.  She wrote:  "ejecting them for holding discordant views could only have been a reprisal for the expression conveyed by the bumper sticker."  Kagan, again, refused to join those two Justices, siding instead with the conservative bloc and Breyer in voting to refuse the case.

Caution is warranted against reading too much into Kagan's actions, particularly the latter one.  There are multiple factors which the Court must consider in deciding which cases to take, and a refusal to review a case does not denote agreement with the outcome in the lower court (of the two decisions, Kagan's refusal to stay the execution is more revealing).  Moreover, in both cases, the outcome would not have changed had Kagan joined Ginsburg and Sotomayor, so it's possible that her joining with the majority was merely some sort of strategic calculation to curry favor early on.  Still, these two decisions not to join Ginsburg and Sotomayor are substantive ones, and are at least worth noting as very preliminary signs of Kagan's approach on the Court.

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As for the Obama administration's defense in court of both The Defense of Marriage Act and Don't Ask/Don't Tell, as well as the President's generally anemic approach to gay issues, my views are roughly the same as those expressed here by Andrew Sullivan.  I intend to write more in the next few days about the contours and limits of the DOJ's duty to defend the constitutionality of duly enacted statutes even where the President purports to disagree with those laws. 

Glenn Greenwald

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