Elena Kagan: 8 Things You Need to Know About Her

Free Speech and Campaign Finance

As an academic, Kagan has written broadly on free speech issues, and her first argument before the Court as Solicitor General centered on the question of whether decades old campaign finance legislation banning corporate expenditures into electoral advocacy violated the free speech rights of the corporations.

Theodore Olson, a lawyer representing the non-profit corporation Citizen's United, told the Court, "Robust debate about candidates for elective office is the most fundamental value protected by the first Amendment's guarantee of free speech."

In her arguments Kagan focused on corruption and wrote, "Use of corporate treasury funds for electoral advocacy is inherently likely to corrode the political system, both by actually corrupting public office holders and creating the appearance of corruption." A deeply divided 5-4 Court ruled against the government.

Video of Senator Harry Reid meeting with Elena Kagan on Capitol Hill.
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Some first Amendment Scholars have suggested however, that although Kagan dutifully argued the government's position in the case, her past academic writings suggest that she might be skeptical of the constitutionality of some campaign finance reform.

Richard L. Hasen of Loyola Law School in Los Angeles says, "I don't think we can draw conclusions based on oral arguments or academic writings. At oral arguments she was representing a client, as to the academic articles, the relevant ones are in some cases, years old."

"It seems to me though that she is likely to face questions about her current views, given that the President has suggested in his comments that she would have sided with the dissenters [in Citizen's United], and that Senator Specter said that Kagan had expressed to him disagreement with the Supreme Court's failure in that case to give sufficient deference to Congress."

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Gay Marriage

Opponents of gay marriage point out that Solicitor General Kagan authorized the filing of a Department of Justice Brief that read, the "Administration does not support DOMA as matter of policy, believes it is discriminatory, and supports its repeal" .

In a written questionnaire Kagan submitted to congress when she had been nominated as Solicitor General Kagan responded to the question "Do you believe that there is a federal constitutional right to same-sex marriage?" by saying "there is no federal constitutional right to same-sex marriage." Later in a letter to Senator Arlen Specter Kagan made clear she was referencing the current state of play in the Courts, not her personal perspective on the question.

"We look forward to hearing more from her on that issue," says Michael Cole, press secretary for the Human Rights Campaign.

Supreme Decision
Supreme Decision

Gun Control

"We have not taken a position as yet but we have expressed concerns on her positions on gun and self defense issues" says Andrew Arulanandam, director of public affairs at National Rifle Association. Support from the group is unlikely, especially since Kagan refers to the NRA in one 1996 memo as a "bad guy" organization.

As a Supreme Court clerk she expressed skepticism regarding a petitioner's contention that a District of Columbia firearms statute violates the petitioner's constitutional right to "keep and bear arms." Kagan wrote: "I'm not sympathetic."

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