Resettling these detainees has been difficult, as they rightfully fear torture if returned to China. But due to an act of Congress in 2009, they cannot be settled in the US, either. When the federal government claimed that other countries offered to accept all of these prisoners (a claim some prisoners disputed), Kagan wrote that “prudential concerns” should lead the high court to drop the case, as the underlying circumstances changed. In effect, such a dismissal would have validated a lower-court ruling that denied federal judges the right to release prisoners. (Taking the middle road, the Supreme Court remanded the case to the lower court on March 1 for further proceedings.) Once again, as in the aforementioned sex-offender case, Kagan seemed satisfied to allow prisoners to wallow in indefinite detention.

MAQALEH, ET AL., V. GATES, ET AL.: Detainees at Bagram air base in Afghanistan sought to extend the aforesaid Boumediene habeas corpus decision — which concerned the right of Guantánamo prisoners to challenge their detention — to foreign nationals held in Afghan prisons. In April 2009, a federal judge sided with the detainees. Eight days later, the Obama administration made one of its earliest affirmative statements on detainee rights when it asked the court to put a hold on the lower-court ruling. According to a court filing, Kagan had authorized the motion “to seek an expedited appeal,” because the ruling potentially “would divert the military’s attention and resources at a critical time for operations in Afghanistan.” More than a year later, the case is still under appeal in a federal court.

DOG-AND-PONY SHOW
Kagan’s defenders can claim that, in supporting the constitutionality of Congress’s laws and the legality of the government’s actions, she simply has been fulfilling her duty as SG. She acknowledged, in a September 2009 visit and talk to Harvard Law School — her first since being named SG — that her “ultimate boss is President Obama,” the Harvard Law Record reported. Nonetheless, there are clear examples of previous SGs whose conscience dictated that they abstain from taking certain positions, even at the behest of their boss.

In a landmark 1978 Supreme Court case, Regents of the University of California v. Bakke, President Jimmy Carter publicly pledged to support the university’s system of affirmative action. But the brief of SG Wade H. McCree, much to the White House’s dismay, supported Bakke, the white student who was attacking the inflexible race quotas that deprived him, a qualified applicant, of a seat in the class. Carter allowed McCree to file his brief, which Justice Lewis Powell embraced significantly in his opinion. Powell held that, although race may be considered as one factor among many admissions criteria, inflexible racial quotas, deemed by McCree and Powell to violate the Constitution’s proscriptions against racial discrimination, were avoided.

Five years later, the court considered whether a racially segregated religious university deserved to be recognized by the IRS as a tax-exempt institution (Bob Jones University v. US). The Reagan administration pushed for an argument supporting the university, a position with which Acting SG Lawrence Wallace did not personally agree. In the end, the SG’s office and the administration compromised: Wallace would sign and file a friend-of-the-court brief only if it included a footnote indicating his personal dissent. The court ruled 8-1 against the university, vindicating Wallace’s position.

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