So far the newest Justice of the Supreme Court, Elena Kagan, is still pretty much an enigma as to her judicial philosophy. The former Solicitor General to President Obama has had to recuse herself from 25 of the 51 cases that will be heard by the Court this session. So far she has sided with the men, mostly conservative, on the two cases that have come before the court.
The first, which Glenn Greenwald feels is the most telling, was the refusal of a stay of execution for Theresa Lewis, the border line mentally retarded woman who was convicted of murder for hiring two hit men. Lewis’ lawyers argued that because she had the intellectual capacity of a 13 year old, also because she had been manipulated 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 carried out the actual crime received life terms. The decision by the court was 7 to 2 and, it is argued, that even if Kagan had sided with liberal Justices Ginzburg and Sotomayor it would not have changed the outcome. Still, this is not a good indication that she is as liberal as the Obama administration and the Republicans who objected to her nomination, proclaimed her to be.
The second ruling is a little hazier since she basically sided with the “boys” to not hear a case that involved the violation of the 1st Amendment rights of 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.” A lower court had dismissed the case and an that decision was upheld on appeal. Kagan did not join Justice Sotomayor who sided with Justice Ginzburg’s written opinion that dissented from the majority’s refusal to hear the case.
Her answer to questions of where she stood on executive privilege and indefinite detentions during her hearings fro Solicitor General were a clear indication that she was not even close to center let alone left in her opinions.
I am, however, in agreement with Greenwald in his conclusion which is not very optimistic about just how Kagan will rule.
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.