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Kagan May Have Agreed with Conservative Majority in Citizens United

Posted May 17, 2010 8:56 AM CDT
By Debra Cassens Weiss

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In oral arguments last September, Solicitor General Elena Kagan defended a law restricting campaign spending by corporations, a fact noted with approval by President Obama when he nominated her to the U.S. Supreme Court.

But if Kagan’s early First Amendment writings are any indication, she may have favored the other side, the New York Times reports.

The Obama administration lost when the U.S. Supreme Court ruled 5-4 in January that corporations have a First Amendment right to expressly support political candidates for Congress and the White House. Obama criticized the decision, Citizens United v. Federal Election Commission, in his State of the Union speech. In nominating Kagan, Obama noted that she chose Citizens United as her first Supreme Court argument. Powerful interests should not be allowed to drown out voices of citizens, Obama said, and Kagan’s decision to argue the case says a great deal about her commitment to protect fundamental rights.

But during oral arguments Kagan dropped the rationale that corporations should not be allowed to drown out the voices of ordinary citizens and instead advanced another argument—that corporations may be treated differently than individuals, the Times points out. And Kagan didn’t appear to care for either argument in a 1996 article (PDF) published in the University of Chicago Law Review, the story says.

University of Nebraska law professor Marvin Ammori thinks Kagan may have voted with the court’s conservatives if she had been a justice, the Times says. “I doubt she agrees with Justice [John Paul] Stevens, who dissented in Citizens United, and suspect she is a defender of corporate speech rights,” Ammori wrote at the blog Balkinization.

The Times identifies two other First Amendment stands taken by Kagan. She backed Justice Antonin Scalia’s opinion in a case that struck down a hate-speech ordinance, and agreed with a Supreme Court opinion that struck down a statute that made flag-burning a crime. In the flag-burning case, Scalia was in the majority and Stevens dissented.

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