So says Legal Satyricon (a law banning books is okay as long as it is not actually used) and the Secular Coalition for America (citing five examples of a disregard of the principle of separation of church and state). Indeed, it is disturbing to think that the author and proponent of a categorical restructuring of free speech law which was called “startling and dangerous” by the Chief Justice in one of the most important free speech cases of this Supreme Court term, and who counts herself as within the ranks of “those of us who favor some form of pornography and hate speech regulation” indeed seems to have a causal attitude towards First Amendment rights in general.
While it is entirely possible that most if not all of these positions were taken in the course of advocacy of her client, the government, over time a lawyer cannot help but acquire at least some familiarity, comfort, and ideological congruence with arguments that the lawyer makes over and over again. Additionally, while Dean of Harvard Law School and otherwise in academia, she was free to espouse whatever beliefs she thought were normatively best. I’m finding myself becoming more and more persuaded that Elena Kagan has a personal viewpoint of First Amendment rights such that she considers them at best an inconvenience to good government, and at worst, not within the appropriate ambit of the judiciary to safeguard.
If that is the case, then that would prove the biggest civil rights disappointment yet of the Obama Administration, and I would have to register my hopes that she is not confirmed to a lifetime appointment to the Court which is supposed to be the ultimate guardian of individual rights.