Elena Kagan on “taking big questions and making them small”

On Sept. 12 Justice Elena Kagan spoke at Hannah Senesh Community Day School in Brooklyn, interviewed by journalist Dahlia Lithwick. Steven Mazie, Supreme Court correspondent for The Economist, covered the speech on Twitter and a print account by Rob Abruzzese at the Brooklyn Daily Eagle confirms the same general points. From Mazie’s account, slightly edited for readability:

KAGAN: People viewing the judiciary as legitimate is part of the “marvel” of the third branch of government.

But that’s fragile. People can lose that faith in “unelected, pretty old” justices. If we lose that, we’re losing something incredibly important to American constitutional democracy.

This is a dangerous time for the court, because people see us as an extension of the political process. “It’s dangerous if in big cases, divisions follow ineluctably from political decisions.”

You have to try as hard as you can to find ways to avoid 5-4 decisions “by taking big questions and making them small.” Recently, we’ve had good practice in that. During 8-member court, we had to try hard to avoid 4-4s and find consensus. Sometimes it had a ridiculous air to it, “since we left the big thing that had to be decided out there.”

We kept on talking until we achieved consensus, and CJ Roberts gets huge credit for that.

I cited this passage Monday at Cato’s Constitution Day as going far to explain several cases this past term in which Kagan took an important role, including Masterpiece Cakeshop (where she and Justice Stephen Breyer joined conservatives in deciding the case on different grounds than those most strenuously contested), Lucia v. SEC (in which she wrote for the court to decide a structural question on administrative law judges narrowly while sidestepping contentious issues of separation of powers and presidential authority) and above all in the partisan gerrymandering cases (decided unanimously without addressing the principal merits, and with a Kagan-authored concurrence on behalf of the four liberals).

Exoneration on the links

“What a wild story: a prisoner serving 39 years to life started making drawings of golf courses. The drawings made their way to Golf Digest, which wrote about him, then realized his conviction was sketchy, then investigated, and now he’s free.” [Tom Gara on Max Adler, Golf Digest]

The article quotes one of Valentino Dixon’s pro bono lawyers: “It’s embarrassing for the legal system that for a long time the best presentation of the investigation was from a golf magazine.”

Labor and employment roundup

New: Cato Supreme Court Review (including me on gerrymandering and the Constitution)

On Monday the Cato Institute published its annual Cato Supreme Court Review for the 2017-18 Supreme Court term. Included is my 7,000-word article on the Supreme Court’s cases last term on partisan gerrymandering, Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland). Several people have told me that I managed to make a dry and complicated subject understandable and even entertaining, which I take as the highest compliment.

The entire CSCR is online, and here are its contents. I assisted in the editing of the pieces by Joseph Bishop-Henchman on the Internet sales tax case South Dakota v. Wayfair, and by Jennifer Mascott on the government-structure case Lucia v. SEC.

FOREWORD AND INTRODUCTION

The Battle for the Court: Politics vs. Principles by Roger Pilon
Introduction By Ilya Shapiro

ANNUAL KENNETH B. SIMON LECTURE

The Administrative Threat to Civil Liberties by Philip Hamburger

IMMIGRATION AND NATIONAL SECURITY

The Travel Bans by Josh Blackman

POLITICAL GERRYMANDERING

The Ghost Ship of Gerrymandering Law by Walter Olson

THE CRIMINAL LAW

Katz Nipped and Katz Cradled: Carpenter and the Evolving Fourth Amendment by Trevor Burrus and James Knight

Class v. United States: Bargained Justice and a System of Efficiencies by Lucian E. Dervan

THE FIRST AMENDMENT AND THE CULTURE WARS

Masterpiece Cakeshop: A Romer for Religious Objectors? by Thomas C. Berg

To Speak or Not to Speak, That Is Your Right: Janus v. AFSCME by David Forte

NIFLA v. Becerra: A Seismic Decision Protecting Occupational Speech by Robert McNamara and Paul Sherman

Regulation of Political Apparel in Polling Places: Why the Supreme Court’s Mansky Opinion Did Not Go Far Enough by Rodney A. Smolla

FEDERALISM AND GOVERNMENT STRUCTURE

Betting on Federalism: Murphy v. NCAA and the Future of Sports Gambling by Mark Brnovich

Internet Sales Taxes from 1789 to the Present Day: South Dakota v. Wayfair by Joseph Bishop-Henchman

“Officers” in the Supreme Court: Lucia v. SEC by Jennifer Mascott

NEXT YEAR

Looking Ahead: October Term 2018 by Erin E. Murphy

September 19 roundup

  • Paradox of Jones Act: by jacking up shipping costs from mainland, it can give goods made overseas artificial price advantage [Cato Daily Podcast with Colin Grabow] Trade wars are immensely destructive, hurting producers and consumers alike, and the latest is no exception [Reuters on China retaliation]
  • Joel Kotkin-Michael Greve exchange on localism at Liberty and Law [Kotkin, Greve]
  • Government demands for encrypted data pose threat to digital privacy [Erin Dunne, D.C. Examiner]
  • “New York’s transportation establishment will not reduce prices to world standards as long as it can demand quintuple the world standard and get away with it” [Connor Harris, City Journal]
  • “The Fair Housing Act prohibits ‘making, printing, or publishing’ any ‘notice, statement, or advertisement’ with respect to ‘the sale or rental of a dwelling’ that indicates any racial preference or discrimination. Does this mean that Ohio county recorders violate the law when they maintain property records that contain unenforceable, decades-old racially restrictive covenants? Sixth Circuit: No need to answer that question, because the plaintiff doesn’t have standing.” [John Kenneth Ross, IJ “Short Circuit”, on Mason v. Adams County Recorder]
  • Trademark-go-round: “Monster Energy Loses Trademark Opposition With Monsta Pizza In The UK” [Timothy Geigner, TechDirt] “Disney Gets Early Loss In Trademark, Copyright Suit Against Unlicensed Birthday Party Characters” [same] “Two Georgia Sausage Companies Battle Over Trademarked Logos That Aren’t Particularly Similar” [same]

“More Comic Conventions Change Their Names After Crazy SDCC Attorney’s Fees And Injunction Ruling”

Following a lawsuit for trademark infringement by the San Diego Comic Con against the Salt Lake Comic Con that resulted in a jury award of $20,000 — accompanied by a $4 million attorneys’ fee award and broad injunction — other comics conventions around the country are scrambling to change their names. [Timothy Geigner, TechDirt, more]

Liability roundup

Can landlords opt out of the Section 8 rental program?

The Section 8 federal housing voucher program was conceived as one in which owners of rental properties participate voluntarily, but that may be changing. One straw in the wind: the push for “source of income discrimination” laws prohibiting landlords from turning away Section 8 tenants. Another: a new Third Circuit decision declaring that the owner of a unit converted to market-rate could not refuse to renew a lease even after the original tenant died. I look at Hayes v. Harvey in my new post at Cato.