Damon Root at Reason seems to think the answer is yes — though whether one argues such deference pushes her more to the right or more to the left seems to depend on whose ox is being gored. Writes Root:
[…] by selecting Kagan—who famously chose to argue Citizens United as her very first appearance before the Supreme Court—Obama sent a clear message about the deferential role he wants the Court to play in future cases. And it didn’t take long for the president’s supporters to start spreading the word. “In the great battles over progressive regulations that will occupy the court for the next decade,” wrote New Republic legal correspondent Jeffrey Rosen, “Kagan will be a compelling advocate for liberal judicial restraint, insisting that congress and the administrative agencies deserve deference, and criticizing conservatives who seek to use the courts to reverse their political defeats.” Similarly, Doug Kendall, the founder and president of the liberal Constitutional Accountability Center, declared, “we expect General Kagan’s confirmation hearing to highlight the conservative judicial activism of the Roberts Court.”
As a political move, this emphasis on judicial restraint makes sense. The Patient Protection and Affordable Care Act—Obama’s signature domestic achievement—is likely to come before the Supreme Court in the near future. Naturally, the president would like the Court to rubber stamp his health care plan.
But will Justice Kagan practice the judicial deference that Obama preaches? There’s some troubling evidence that suggests she will. For example, during the first round of Supreme Court oral arguments in Citizens United, Deputy Solicitor General Malcolm Stewart made the shocking claim that nothing in the First Amendment prevented the government from banning corporate-funded political books. When Kagan appeared before the Court several months later for the second round of arguments, she offered an unconvincing semi-retraction of her deputy’s statement. “What we’re saying is that there has never been an enforcement action for books,” Kagan told the justices. “Nobody has ever suggested—nobody in Congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem.” In other words, trust us. But as Chief Justice John Roberts correctly observed, “we don’t put our First Amendment rights in the hands of FEC bureaucrats.”
Unfortunately, the Democrats who control the Senate Judiciary Committee aren’t likely to worry about that form of pro-government judicial deference. But perhaps they’ll pay closer attention to Kagan’s views on executive power. In her celebrated 2001 Harvard Law Review article “Presidential Administration,” Kagan offered a detailed account of the increase in presidential power that followed the growth of federal regulatory and administrative agencies in the 20th century. As the human rights attorney Scott Horton has observed, Kagan “pays lip service to the limitations on executive authority contained in the Constitution, but she’s generally in the thrall of executive power.”
That’s not something that could be said about Justice John Paul Stevens, who, despite many significant shortcomings, emerged as a forceful opponent of George W. Bush’s sweeping claims of “inherent” executive authority. In 2006’s Hamdan v. Rumsfeld, for instance, Stevens wrote a powerful majority opinion declaring Bush’s use of military tribunals for Guantanamo detainees to be unconstitutional. Yet as the respected legal commentator Stuart Taylor Jr. pointed out this week, “Kagan’s record suggests that she probably falls to the right of Stevens—arguably the most liberal current justice—at least on the presidential-power and war-on-terror issues that may be more important than any others that come before the justices in our times.”
A justice deferential to legislators is not a problem in and of itself; in fact, so long as the legislature doesn’t exceed its authority under the Constitution, a justice should be deferential. Deference to executive power, on the other hand, is more complicated; I prefer a Court that understands the separation of powers but at the same is vigilant against executive overreach. We don’t need a king, but we don’t need a set of philosopher kings ruling from the bench, either.
In the case of Obamacare, no amount of deference to either executive or legislative authority that simultaneously remains true to judicial fidelity will be enough to paper over its constitutional problems. The concern progressives have with replacing Stevens with Kagan is not, I don’t believe, that Kagan is too far right. Rather, the real problem may just be the difficulty in getting seated again someone as far left as Stevens.
Discuss.
In that regard she is similar to Roberts and Alito. They are all way too deferential to executive power. The difference for Kagan (from Alito and Roberts), of course, would be she would hold a George W. Bush’s feet to the fire and would grant Barack Obama anything dear leader wished.
Call me old school, but I would like the court to push back a bit on executive power, but do so fairly and the same regardless of the president having an (R) or (D) designation.
link
Kagan is too ……. close to Barack Obama. From where I stand, that’s right about all it takes to put her beyond contemplation for Government service, let alone a lifetime appointment to the Supreme Court. Ya see, he’s a bad man, very bad.
Thus spake two pawls of the one-way ratchet who are looking at being stripped clean away.
As trite as it may sound, the question is one of restraint in each branch of government. It has been apparent for a long time that none of them are willing to defer to the Constitution, and refrain from exerting power, if the fancy strikes them.
There are no statesmen/women/persons/entities anymore.
because abortion was a judicial defeat
She can’t argue. I worked with and work with attorneys who argue at the US Supreme Court. In my ‘moot court’ before my first argument before the Michigan Court of Appeals I had as my judges the Solicitor General, the Head of the Appelate Division, his second (who knew the subject matter due to working on it for over ten years) and my supervisor (who had argued before the Sixth Circuit and – I think – the Supremes.
Criminey – know everything backwards, forwards, sideways, and every direction you can imagine. And if you do not know, just admit it – (it goes a lot better if you don’t try to BS). In fact, the then-Solicitor General of Michigan, Tom Casey*, said that I did right by admitting that I did not know an answer to a question he had asked at that moot court.
*Retired; and a very respected attorney – calm, cool, collected – his opinion is one that I value because he earned his reputation by being So. Damn. Good.
(And if you ever met him, you would not know that this quiet, humble, cheerful, man was exactly that type of attorney.)
well her tongue can do other things
R. Sherman, you are correct. But the Supreme Court is supposed to interpret the constitution to do exactly that. And while the branches are equal, more deference should be given to Congress than the Executive. The reason being Congress is the direct representative of all the people and the Executive is just one man.
The Washington Examiner’s Wesley Pruden on Kagan’s University of Chicago Law Review article, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.”
Spread my wealth. Spread my speech. Soon I’ll be spread so thin the “I” will disappear.
The Supreme Court will be rendered moot by the next election. They have functioned for decades as a firewall for the insane policies of the Democratic Party.
After the Democratic Party is all but eliminated from existence in the next election cycle, the healthcare bill will be used to wallpaper the tourist bathroom in the Capitol.
Any pages of the Healthcare bill not used to wallpaper the bathroom will be recycled into two ply and used to wipe the asses of the proletariat.
Rahm will be your washroom attendant.
oh bullshit the constitution is about LIMITED GOVERNMENT
During the drill, my greatest fault was walking away from the lectern. The lectern (in the Michigan Court of Appeals) had the microphone that the judges needed in order to hear the attorneys.
But, my training as a substitute teacher was ‘do not anchor yourself to the lectern – move around the classroom’. I needed that reminder, because when I get going I like to pace about.
Is Kagan too deferential to executive power?
That’s a trick question. It’s impossible for anyone to be too deferential to executive power. Deference x RAAAAACIST! = a constant, and everyone knows that RAAAAACISM! is bad.