Kagan has a history of executive-branch service — first, as associate White House counsel in the Clinton administration, and now as Obama’s SG. In one of her few written works, a 2001 Harvard Law Review article titled “Presidential Administration,” she supported Clinton administration efforts to assert control over regulatory agencies as a means of overcoming an obstructionist Republican-controlled Congress. Granted, this was before the Bush administration asserted unprecedented power after 9/11 and fundamentally altered the commander-in-chief’s authority. But as the nuanced notion of executive authority that she advocated became a vehicle for destruction of constitutional liberties, she never felt compelled to publicly revise or update her stance.
In one noteworthy area, Kagan has revised her earlier views. A 1995 Chicago Law Review article saw Kagan extolling tough questions for executive-branch nominees seeking congressional confirmation. Without such scrutiny, Kagan wrote, “the confirmation process takes on an air of vacuity and farce.”
Fourteen years later, when Kagan was seeking congressional approval as SG, much had changed. Though senators inquired about her views on, for example, the death penalty and the right to bear arms, she repeatedly responded that expressing her opinion does not comport with the responsibilities and role of the solicitor general. As the Washington Post’s Robert Barnes noted at the time, Kagan had effectively changed her opinion on opinions.
DISCERNING HER RECORD
Having kept her views so close-to-the-vest, Kagan’s record as SG may be the best available evidence with which to evaluate her judicial philosophy. In all fairness, though, a review of her still-short tenure as SG must be taken with a grain of salt, because, as any legal scholar can tell you, the SG doesn’t necessarily argue her personal convictions in the courtroom — she advocates on behalf of the administration.
The main tasks of the SG are 1_ deciding whether to appeal when lower courts rule against the government, 2_ urging the Supreme Court to accept or reject cases for its docket, and 3_ representing the federal government before the high court, arguing some cases, and filing friend-of-the-court briefs in others that set forth the government’s position where the government is not a formal party. All told, the SG is involved in about two-thirds of the cases decided by the court each term.
In this influential role, the SG has enjoyed a long-respected independence. For instance, if, as SG, she deems as particularly odious a position that the attorney general or president insists the administration take in a case, or that government lawyers advanced in the lower courts, she has the option to excuse her office from doing the government’s dirty work. The government can, in such an unusual situation, enlist an outside lawyer or volunteer in the SG’s office to represent the government’s position. Indeed, the court itself can appoint a lawyer to argue a position.
But during Kagan’s tenure as SG, she has signed briefs and personally argued some cases and taken extreme positions that should be cause for concern to supporters and civil libertarians who elected Obama. In particular, in cases involving national security and the war on terror, and still others in the criminal-law arena, Kagan has advanced the notion of an extraordinarily strong executive authority.
Consider the following cases in which SG Kagan has argued or filed briefs on behalf of the government: