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U.S. Supreme Court

Kagan Claims ‘Chutzpah’ in Latest Dissent; Her Opinions Are Conversational, Wry

Posted Jun 28, 2011 7:48 AM CDT
By Debra Cassens Weiss

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Justice Elena Kagan flexed her writing muscle in her dissent on Monday to a Supreme Court ruling striking down Arizona’s campaign finance law.

The law overturned by the majority gave publicly financed candidates more public dollars when their privately funded opponents spent more. The 5-4 majority decision (PDF) said the law increases the speech of publicly financed candidates at the expense of those who are privately financed.

Kagan used a Yiddish term to attack the First Amendment argument, notes TMPMuckraker. The plaintiffs challenging the law “are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance,” she wrote in dissent. “Some people might call that chutzpah.”

Freshman justices are usually assigned less controversial decisions, the Wall Street Journal (sub. req.) notes. As a result, Kagan’s majority decisions are “notable more for her writing style than provocative jurisprudence,” the story says. The newspaper describes her tone as conversational and occasionally wry, with little legalese.

The Wall Street Journal concludes that Kagan has mostly shored up the court’s liberal wing. The newspaper interviewed Supreme Court litigator Carter Phillips of Sidley Austin for his thoughts. "I thought there was a possibility she might be more moderate,” he said. Instead, she stayed fairly close to Justice Ruth Bader Ginsburg.

According to SCOTUSblog statistics cited by the New York Times, Kagan voted with Justice Sonia Sotomayor 94 percent of the time and with Justice Ginsburg 90 percent of the time.

Updated at 11:30 a.m. to include statistics on Kagan's affinity with Ginsburg and Sotomayor.

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