Why Kagan could be a crucial vote on key cases
OPINION - On Thursday, the U.S. Senate voted to confirm Elena Kagan to the U.S. Supreme Court...
On Thursday, the U.S. Senate voted to confirm Elena Kagan to the U.S. Supreme Court, with several Republican votes and no attempts to filibuster. Now that Solicitor General Kagan is about to become Associate Justice Kagan, Americans will have the opportunity to see how she comes out on the issues.
Up to this point, Kagan’s paper trail has been scant at best, and as a person with “real-world” experience and no time serving on the bench, she has no judicial record whatsoever. However, her work experience as a law clerk for the late Justice Thurgood Marshall, a Clinton adviser, a law school dean, and a lawyer representing the U.S. government before the high court could provide some clues. Further, she has been called a liberal and a pragmatist, an analytical person who seeks common ground, and someone with a strong personality whose presence could begin to gradually change the court.
Check out this Grio slideshow on the life and times of Elena Kagan
The conventional wisdom is that Kagan replacing Justice John Paul Stevens will be a wash from an ideological standpoint. And as the third woman presently on the high court—and only the fourth woman ever to sit on the nation’s most important judicial body—a critical mass of female justices will likely have a positive influence on cases involving discrimination and other issues. She pledged “even-handedness” and “impartiality” on the court.
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Conservatives who disrespect the legacy of her ex-boss Justice Marshall claim Kagan is an activist radical judge that will legislate from the bench. During the confirmation hearing, her detractors cited Marshall’s protection of the little guy. But in reality, the present court has engaged in all sorts of judicial activism by expanding second amendment gun ownership rights, and allowing unlimited corporate influence in election campaigns.
There is evidence that for now, the Supreme Court is the most conservative it has been in years, with the center-right Justice Kennedy providing the swing vote. And barring some unexpected vacancy of a seat currently held by a hardline conservative—such as Justice Thomas deciding to spend more time with his family—it is likely to remain that way for some time.
In the coming year, a number of important cases on the docket will come before the Supreme Court, and Justice Kagan’s opinion may or may not make a difference.
CALIFORNIA PROPOSTION 8. Although not currently on the Supreme Court docket, it is possible that California’s Proposition 8 could eventually make it to the high court. On Wednesday, a federal district judge overturned Prop 8—the ballot initiative that banned same-sex marriages in the Golden State. It all depends on whether the appellate court overturns the district court’s decision, and whether the Supreme Court agrees to take the case. And if it gets to the court, it’s all up to swing voter Justice Kennedy. Meanwhile, in the 1967 Loving v. Virginia decision, the Supreme Court invalidated the laws prohibiting interracial marriage that were still on the books in 16 states.
CONNICK v. THOMPSON. John Thompson, who was convicted of murder in New Orleans, was freed after spending 18 years in prison, most of that time on death row. He sued the district attorney’s office for failing to turn over evidence pointing to his innocence, specifically, blood from the crime scene that was not his. The court will review the $14 million jury award to determine if the district attorney’s office should be held liable for the misconduct of one of its prosecutors.
CULLEN v. PINHOLSTER. The Supreme Court will decide whether to reinstate the death penalty against a California man convicted for double murder. At issue is that Pinholster’s trial lawyers could have introduced evidence concerning his mental illness and childhood abuse that may have swayed the jury, but they did not.
KASTEN v. SAINT-GOBAIN PERFORMANCE PLASTIC. When Justice Kagan joins the Supreme Court, she and the eight other justices will determine whether an employee who makes oral complaints to an employer is protected against retaliation under the Fair Labor Standards Act.
ONTARIO v. QUON. In this privacy case, Justice Kagan and her colleagues will decide if a government employee has any right to privacy under the 4th Amendment for text messages sent via a pager.
SKINNER v. SWITZER. The question presented here is whether a prisoner who seeks DNA evidence to prove her innocence can file a federal civil rights lawsuit, or must he file what is called a petition for writ of habeas corpus—a legal action to release her from unlawful detention.
VOPA v. REINHARD. In a case involving sovereign immunity (the idea that a government cannot be sued unless it consents to the suit), the issue here is whether the 11th Amendment prohibits a state agency from suing officials of the same state in federal court for breaking federal law.
SCHWARZENEGGAR v. EMA. The Supreme Court is asked to determine whether a California law that prohibits the sale of violent video games to minors is an infringement on free speech under the First Amendment.
