In that article, she discusses two cases, Austin (later overruled by Citizens United) and Turner (which I'll explain here). To understand legal arguments, you have to know the cases discussed, as lawyers think in cases. If a lawyer says she supports Roe v. Wade and opposes Lochner v New York, you know what she means if you know those cases. So let me explain the relevant cases here.
Citizens United, Austin, and Corporate Campaign Expenditures
In Citizens United, the Supreme Court famously held that the government could not limit campaign expenditures from the general treasuries of corporations in the immediate run-up to an election. It was a 5-4 decision along the Court's now-usual conservative-liberal split. Citizens United overruled another decision (which had upheld limits on such corporate expenditures) called Austin (decided 1990).
Barack Obama has criticized Citizens United more than any other Supreme Court decision. He told Congress (to Alito's displeasure) that it "reversed a century of law" and would "open the floodgates for special interests." Justice Stevens authored Citizens's principal dissent. When Stevens retired, Obama said he would nominate someone "who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."
Kagan, of course, actually argued Citizens United for the Obama administration; but that doesn't mean that she agreed with her client's position. It was her job as Solicitor General to represent her client (which Justice Roberts' confirmation reminded us), which she does in all her arguments, even in her less popular arguments. Further, in Citizens, Kagan did refuse to argue the case based on the rationale of the existing precedent.
The Rule/Exception/No-Distinction Model of Legal Argument
To understand legal scholarship, beyond knowing the key cases, it helps to know one very common method of making arguments, which is relevant to this post.
Essentially, there are three steps.
1. The Rule. You list a few Supreme Court decisions that you say all follow the same principles, which set out a general "rule."2. The Exception. You list one decision (or two) you say doesn't follow the rule, and is an exception.
3. No-Distinction. You then determine there's no good reason for distinguishing the exception from the rule. Nothing special justifies the exception.
Conclusion: the exception should be overruled, as it unjustifiably conflicts with the rule.
To shoot fish in a barrel, let's look at Citizens United. Both the majority and the dissent follow this model. The conservative majority says, "The overwhelming rule among all our decisions is simple: corporations can't suffer under special speech restrictions. Austin said the opposite and is a lone exception. Nothing adequately distinguishes Austin. Let's overrule."
The more liberal dissent, of course by retiring Justice Stevens, said, "The majority ignored and misread our case law, and the rule is that government can consider corporations' nature (they're artificial, have government benefits, and are potentially corrupting) when restricting their campaign activities. Austin is therefore not an exception but fits with the rule of many cases; actually, the majority in Citizens will be an exception. Nothing distinguishes Citizens from the rule. This case, Citizens, should eventually be overruled."
Considering Kagan's Scholarship
You can guess where this post is going. In one of Dean Kagan's few major law review articles, she describes the legal "rule" in agreement with Citizens United's conservative majority, not Stevens' dissent, and says Austin can't be distinguished. She does something similar for phone and cable companies (as I'll explain), again siding with the largest corporations (and Justices Antonin Scalia and Clarence Thomas) over Stevens.
In the common language of law review articles, the conclusion can almost be implied: these exceptions should be overruled, as they are unjustified exceptions in the law.
Kagan's Private Speech, Public Purpose
As reporters have noted, Kagan's scholarship is "dense" and "technical," and there's not much of it (as she spent a lot of time in government and as a dean). But her scholarship seems to reject the Stevens/Obama position on Austin and Citizens United and support the conservatives' position--even if it does so densely and technically.
One of Kagan's few major articles is called Private Speech, Public Purpose. It was published in 1996--long before Citizens, but it discussed Austin, the case Citizens overruled. I will focus on pages 464-472, for anyone interested in rebutting or confirming my thinking here.
In these pages, Kagan discusses what she calls the Buckley principle (named after a case). That "Buckley principle" states that government may not "restrict the speech of some elements of our society [think: powerful corporations] in order to enhance the relative voice of others [think: average individuals]." Her Buckley principle is almost the opposite of the Obama statement that "powerful interests must not be allowed to drown out the voices of ordinary citizens."
How does Kagan treat the Buckley principle? It is her First Amendment "rule." She says the principle "has ramifications far beyond the area of campaign finance. It applies as well to a wide variety of schemes designed to promote balance or diversity of opinion." By "applying" to those schemes, she suggests it forbids them.
More specifically on corporations, she wrote:
Campaign finance laws like those in Buckley easily can serve as incumbent-protection devices, insulating current officeholders from challenge and criticism.When such laws apply only to certain speakers or subjects, the danger of illicit motive becomes even greater; for example, the law in First National Bank v Bellotti [cited repeatedly by the Citizens conservative majority], which barred corporations from spending money in referendum campaigns, almost surely arose from the historic role of corporate expenditures in defeating referenda on taxation.
What is the exception? What else? Austin. The case overruled by Citizens. It is a "lapse."
She presents Austin not as a rule (or an overriding "principle" like Buckley's) but merely an example of where the Court's "commitment to the Buckley principle" has "lapsed on some occasions." She notes that Austin rested on Obama's rationale--one she seems to have abandoned in the the Citizens argument--that "corporate wealth could cause 'distortion' and 'unfairly influence elections.'"
And can we distinguish Austin? Turns out, nope.
In a footnote, she explains that the Court failed to convincingly distinguish Austin from the Buckley principle. In fact, Kagan cites the exceptional Austin three other times in the article--but each time she cites not to the Austin majority (supporting Obama/Stevens), as one would expect, but to the Scalia dissent. And she does so generally to use Scalia's points to support her own.
Kagan's Parallel Argument: Comcast, Time Warner Cable, Verizon, and AT&T
Whether the First Amendment bans government restrictions on corporate campaigning is one question.
Another question is whether the First Amendment bars governments from imposing some regulations on cable and phone companies. Nearly every day, lawyers for the cable and phone companies argue that any regulations of their industries burden their "speech" rights. In arguing against net neutrality--a rule prohibiting phone and cable companies from implementing their plan to restrict users' access to an open Internet--the companies argue they have a First Amendment right to block websites and technologies on the Internet, for example (see here and here, here, here).
Yes, it's a pretty crazy argument. But it's one that several judges, and maybe Elena Kagan, have some sympathy for.
In her article, she discusses a major case called Turner, and she seems to agree with the cable companies' most aggressive arguments.
To keep it (overly) simple here--Turner, in the mid-1990s, upheld a congressional statute meant to promote diverse speakers on the cable platform. Cable operators argued that Congress was unconstitutionally "burdening" the "speech" rights they have to determine exactly which channels their subscribers will receive.
A Supreme Court majority rejected that argument and upheld the law. Stevens wrote separately to say he would have gone even farther than the majority in deferring to Congress on this law.
Rule: Because Turner upheld a law meant to promote diverse speakers, Turner does not support Kagan's broad reading of the supposed Buckley "rule" that government cannot limit some speakers in increasing the speech opportunities of others. In fact, Kagan says that the Buckley principle "could summarize the view" of the Turner dissenters, who sided with the cable companies.
Exception: Turner contradicts her Buckley rule. As did Austin.
No-Distinction: Can Turner be distinguished from Buckley's rule? Kagan says no, again, in a footnote. (Her point is that the cable rules "may be said to constitute a direct restriction" exactly like one in Buckley.)
So, once again,to Kagan, when a Court permits government to adopt a law for the largest corporations meant to promote diverse speech, it is an unjustified exception.
Am I Jumping To Conclusions?
Here is the conclusion I am reaching: the implication of her arguments are that Austin should be overruled (Citizens United did that) and so should Turner, under the standard argument model, because they are "exceptions" to the broad rule. She does not explicitly call for their reversal, but the argument structure almost necessarily implies it.
My caveats are:
1. She didn't come right out and say the cases should be overruled. She just made every other step in the argument, and didn't state the usual conclusion. Maybe that means she disagrees with overruling the cases. But there's little indication of that either.
2. Kagan wrote this article 14 years ago, and both the law and Kagan herself have changed since. She may have a different view of the rule and the exception for campaign finance and cable, or a different view of how they apply. She doesn't have a detailed record on the question.
3. Kagan's article claims to be descriptive, not normative. That is, she claims largely to be describing case law, not endorsing it. But many people who support Austin and/or Turner would describe the law differently than she did--including Stevens in his Citizens dissent, and Turner in its majority, and scholars like C. Edwin Baker (also here), Jack Balkin, Yochai Benkler, and others.
In her descriptive story, she admits that the Buckley sentence she takes as a principle is among the "most castigated passages in modern First Amendment case law." Justices Breyer and Justices Stevens have both stated that the Buckley claim descriptively "cannot be taken literally," as it would make time-limits on congressional speeches unconstitutional. It would also make copyright unconstitutional, as copyright silences copiers to increase the relative voice of creators. Yet, for Kagan (and Scalia, not Stevens or Breyer), descriptively, the Buckley sentence passage reflects a general rule.
Beyond description, Kagan seems to defends the Buckley principle as a means for judges to determine improper government motives regarding speech--using as an example limiting campaign expenditures by corporations, quoted above.
Upshot
Does Kagan support a broad reading of Austin and Turner, or a broad reading of Buckley, Citizens, and the Turner dissent and the Austin dissent?
Does she agree with Scalia and Thomas or with Obama and Stevens? ... OK, that sounds loaded, but I don't actually know the answer, from the record.
Follow Marvin Ammori on Twitter: www.twitter.com/Marvin_Ammori
Review of this book by Gill Ballinger:
"Houston's final chapter on Dracula is also rewarding; whilst the Gothic resonances of this novel have been scrutinized in great detail, she brings an interesting perspective to the text through her reading of the economic anxieties it depicts. She illustrates successfully how the novel can be read in the context of the corporate personality and bankerization. Both Dracula and Van Helsing are, she contends, competing for "a complete monopoly on circulation and consumption" (117). Dracula is read in the context of the foreign investor competing, and attempting, to overthrow his competitors. Although this argument is suggestive, it would have been useful for Houston to acknowledge Franco Moretti's Marxist approach to the novel in his chapter "Dialectic of Fear" in Signs Taken for Wonders (1983), specifically Moretti's consideration of how Dracula is "a true monopolist.""
http://www.school-scholarships.org/
But, even hours after the second reading, something still didn't make sense to me. Why had Kagan argued the Citizen's case way she did?
She and the President have known each other for years and I find it hard to believe she disagrees with his philosophy on this matter. Indeed, as much as this ruling offended the President, I find it hard to believe it would not be a major concern in his next nomination, and therefor even harder to believe she will get the nomination if her arguments on the case were actually her own beliefs.
I'm wondering if what we saw in oral arguments wasn't just a calculation. It appears that the administration was genuinely flabbergasted that the court ruled against "a hundred years of precedence". Perhaps they thought that the ruling on Citizens was going to be a slam dunk, and therefor Kagan's argument was calculated to be one that would be hard for Republican Senators to attack during a confirmation. If they felt they were going to win anyhow, why give them red meat if it's not necessary to do so?
Given President Obama's record in just the short time he has been in office it is not a surprise that he would appoint a person to the supreme court who would enhance the influence of the powerful and the privileged and diminish the influence of regular Americans.
Too bad.
Perhaps Kagan and every other judicial nominee should be required to answer whether or not we the People should require that the judiciary, and all the legislators as well (providing that we continue to have them), be compelled (to begin) to rely solely on the Constitution itself, and not on the layer after layer of bogus and in many cases shaky unfounded case law?!
I sincerely hope Kagan and every other judicial nominee is closely held to Kagan's own self proclaimed high standards.
But if Kagan, or any of the others are closely held to that standard, the courts will be forced to embrace the Constitution once again.
Rather than their relying on law school Constitutional theory, or the nonsense, and in some cases outright gibberish, that the theorists and the judiciary have been trying to pass off as Constitutional law, since Woodrow Wilson, FDR, and many others began to pack the courts with Leftist’ that refuse to acknowledge the intent of the Founders, or adhere to the Constitution at all, more than ninety years ago!
You also make the expected, yet false and shallow, assumption that original intent = conservative, and activist = liberal. The three most "activist" SCOTUS regimes in our history (in no particular order) are the 1920s-1937 court, the Warren court, and the Rehnquist/Roberts court. Two of these are decidedly conservative activist courts. Where in the document does the Constitution support laissez faire economics? Corporate rights equal to or greater than individual rights? Repeated exceptions to the 4th, 5th and 6th Amendments? Don't you find it just a wee bit ironic that your so-called originalist heroes never find anything in the constitutional language that differs from their own narrow ideological beliefs?
So with that so, I say Kagan should be pointedly and repeatedly pinned down about how any court can rely on the Supremacy Clause, the Commerce Clause, and almost the entire body of text of the original 1787 Constitution, that had granted the federal government sweeping powers, when the Bill of Rights, which was ratified into the Constitution in 1791, all but gutted most of the federal powers within the original Constitution?!
Kagan and every other nominee should also be asked if the current system of the judiciary constantly building onto the case law, effectively creating a house of cards that has little to no resemblance or relationship to the actual Constitution, should be denounced?
Let's ask Kagan and all the others wtf is a "penumbra" of law in their eyes? And, wtf granted the judiciary any authority to decide lawful issues based on a "penumbra" of law? Then ask, if courts can rely on this vague "penumbra" nonsense, why do we need legislatures and legislators, at all? Let's ask why we can't just compel the judiciary to create wordy decisions about every possible issue based on the "penumbra" of law, and save all the time, expense, effort and energy, of electing, standing up, and supporting all of the legislative bodies?!
In that ABC News article Kagan is quoted as saying ""When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce." I say Kagan is absolutely correct. And when Kagan has advocated pressing nominees much more strenuously, I say she's correct about that too!
But throughout Kagan's writings and interviews, Kagan fails to ever mention that the only Higher Court nominees to be skewered in any manner similar to that of Judge Bork, are the original intent Constitutionalists!