Greenwald’s read on Elena Kagan’s first rulings

Elena Kagan came to the Supreme Court with twin concerns, one real and one manufactured. The manufactured concern was from the Right (natch), that she’s “too far left,” based on no evidence at all (no link, but the quote is everywhere).

The real concern was that she was too much of a “blank slate” and her barely expressed leanings were far more rightward than Justice Stevens, whom she replaced. Of particular concern was her suspected deference to executive power.

Elena Kagan has now joined two rulings, and Glenn Greenwald attempts to suss out what they reveal:

[T]here are two cases in which Kagan’s actions shed some minimal light on how she is approaching her role — minimal, though still worth noting, particularly in light of how much time and attention was devoted here to her being named as Justice Stevens’ replacement.

One case was a request to stay the execution of Teresa Lewis in Virginia. The other was a request to review a lower court dismissal of a lawsuit by two Denver residents against the government — these are the two ejected from a Bush campaign event in 2005 because they had a “No More Blood For Oil” sticker on their car.

In both cases, Kagan sided with the conservative majority and against Ginsburg and Sotomayor. Regarding the first:

Lewis’ lawyers argued that execution was unjust because “she is borderline mentally retarded, with the intellectual ability of about a 13-year-old,” because she “had been used 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 fired the shots received life terms.”

That ruling was 7–2. About the second, Greenwald cautions against reading too much into the case — refusing to review a case doesn’t imply agreement with the outcome. Nevertheless:

[I]n a fairly unusual written opinion dissenting from that refusal [pdf], Ginsburg — joined by Sotomayor — argued that these ejections constituted a clear violation of these citizens’ First Amendment rights which the Court should adjudicate. She wrote: “ejecting them for holding discordant views could only have been a reprisal for the expression conveyed by the bumper sticker.” Kagan, again, refused to join those two Justices, siding instead with the conservative bloc and Breyer in voting to refuse the case.

As I said, a first read; but it seems the “real” concern was real enough, and the manufactured one just smoke and a place to blow it.

More of the same — now there’s a change I didn’t see coming. Thank you, sir.

GP


Gaius Publius is a professional writer living on the West Coast of the United States. Click here for more. Follow him on Twitter @Gaius_Publius and Facebook.

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