SUPREME COURT WATCH
wishes to subsidize the ownership of crucifi xes. It could purchase the religious symbols in bulk and distribute them to all takers. Or it could mail a reim- bursement check to any individual who buys her own and submits a receipt for the purchase. Or it could authorize that person to claim a tax credit equal to the price she paid. Now, really—do taxpayers have less reason to complain if the State selects the last of these three options? The Court today says they do, but that is wrong.
Justice Kagan’s dissent in Arizona Free Enterprise led with hypotheti- cal examples, stating in the very fi rst sentence: “Imagine two States, each plagued by a corrupt politi- cal system…” In Sykes, Justice Ka- gan likewise put readers in the role of law students asked to use their imaginations: “Imagine the converse of the statute described above—a statute making it a crime to ‘willfully fl ee from a law enforce- ment offi cer without driving at high speed or otherwise demonstrating reckless disregard for the safety of others. . .’”
Justice Kagan’s personality peeked through in other ways as well. In her dissent in Arizona Free Enter- prise, Justice Kagan adopted an informal, witty tone in several pas- sages. For example, in arguing that Arizona’s matching funds system made more sense than a lump-sum public fi nancing system that the Court majority would have condoned, because too low a lump sum would disad- vantage the publicly fi nanced candidate while too high a lump sum would waste public resources, Justice Kagan stated: “The diffi culty, then, is in fi nding the Goldilocks solution—not too large, not too small, but just right.”
That Justice Kagan is already comfortable enough on the Court to make references to nursery rhymes while attacking her colleagues’ reasoning may be a result of her close contact with the Court in her role as solicitor
general. That her dissents were so passionate may give comfort to liberal Court watchers who were eager for the justice who replaced Justice John Paul Stevens—re- garded by many as the guardian of individual rights and the fearless leader of the liberal bloc on the Court—to fi ll his large shoes. Looking at the term’s cases overall, Justice Kagan voted reliably with her colleagues in the liberal wing of the Court. Many of the most contro- versial cases of the term—such as those addressing the constitutionality of Arizona’s campaign fi nance law or a challenge to state support of re- ligious schools—unsurprisingly were decided with a 5–4 split, with Justice Kagan siding with Justices Ginsburg, Breyer, and So- tomayor. But Justice Kagan also found herself taking the position traditionally viewed as “liberal” in the less closely divided cases as well. In each of the Court’s rul- ings decided 6–3, Justice Kagan voted with the criminal defendant or civil plaintiff, or against the corporate entity seeking to relieve itself of the burden of particular government regulation.
Justice Elena Kagan
Justices’ approaches to judging and views on issues often change over the course of their careers on the Court. At age fi fty-one, Justice Kagan will likely serve on the Court for many years. Her re-
cord on her fi rst year on the bench may not be much of a barometer for how her career on the Court will evolve. But it is a strong indication that, however her jurisprudence evolves, her approach and writing— drawing from her experience as law professor, dean, and solicitor general—will be both insightful and entertaining.
Kristin Linsley Myles, Michelle Friedland, Aimee Fein- berg, Miriam Seifter, and Michael Mongan are litigators at Munger, Tolles & Olson in San Francisco and all clerked at the Supreme Court—for Justices Scalia, O’Connor, Breyer, Ginsburg, and Souter, respectively.
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 51
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68