Elena Kagan in Hell

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

Senator Hatch. OK. We have to have a little back and forth every once in a while or this place would be boring as hell, I’ll tell you.

[Laughter.]

Ms. Kagan. And it gets the spotlight off me, you know, so I’m all for it. Go right ahead.

Senator Hatch. I can see that. And by the way, I’ve been informed that hell is not boring . . .

Ms. Kagan. Just hot.

* * *

That joshing between Senator Orrin Hatch and Elena Kagan — they were discussing free speech — occurred during her confirmation as a justice of the Supreme Court. The exchange came to mind this week as Justice Kagan, on the last day of the court’s term, warned that conservatives are “weaponizing the First Amendment.” Liberals — with Justice Kagan in the van — have officially emerged as the enemies of the first article of the Bill of Rights.

This is well-marked in a dispatch Sunday by the Times’ Supreme Court reporter, Adam Liptak. He writes of the “stunning run of victories for a conservative agenda that has increasingly been built on the foundation of free speech.” The First Amendment has been used to end campaign spending limits, shelter religious Americans who want to demur on same sex weddings, protect opponents of abortion, and curb regulation of tobacco and pharmaceuticals.

The Senate was skeptical of Justice Kagan from the start. What Senator Hatch was joshing about was Citizens United, which ended many limits on campaign spending. It was Justice Kagan, then solicitor general, who lost the case. It fell apart when she tried to palm off on a horrified court the idea that, during a campaign, the government could even ban books. Come her confirmation hearing, Ms. Kagan said she was just defending the statute Congress had passed.

The justice-to-be also acknowledged that Citizens United is “settled law going forward.” What just set her off about how conservatives are weaponizing the First Amendment was the decision of the Nine in favor of Mark Janus, an Illinois child services aide who’d gone to court because he objected to being forced to pay union dues. The justices found in his favor on free speech grounds, and Justice Kagan wrote an inchoate dissent.

The court, she suggested, was using the First Amendment as a “sword” and “against workaday economic and regulatory policy.” She warned that “the majority’s road runs long” and that “at every stop are black-robed rulers overriding citizens’ choices.” The First, she claimed, “was meant for better things” than undermining “democratic governance.” Chief Justice Roberts retorted that the majority was just enforcing the Amendment as “properly understood.”

None too soon, the Sun says. Feature where the Democrats are going with this. Law professor Catharine MacKinnon is quoted by Mr. Liptak as writing of the First Amendment: “Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”

In other words, free speech for the noble comrades but not for the Hillary Clinton’s “deplorables.” That’s where we’re headed if the Senate balks and refuses President Trump’s next nominee (a turn of events that wouldn’t surprise us). Meantime, the long resistance to the First Amendment will be mounted by Justice Kagan and her liberal colleagues, black-robed justices themselves, perched along the purgatory to the region where the Devil isn’t a joke.


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