I remember when Steve Lubet questioned whether former Solicitor General Ted Olson should be allowed to argue that the federal campaign finance reform statute was unconstitutional in Citizens United, because, as Solicitor General, he had argued a contrary position. At the time, I didn’t understand why that mattered since “advocates represent clients,” not their personal views.
Likewise, I don’t think it matters, ethically or otherwise, that Justice Elena Kagan signed on to the majority opinion in Brown v. Entertainment Merchants Association, 08-1448.
Right now, you may be wondering about the comparison here. So let’s backtrack a little.
In the 2009 Supreme Court term, Justice Kagan was then Solicitor General Kagan. In her capacity as SG, Kagan represented the federal government in a First Amendment case called United States v. Stevens, No. 08-769. There, SG Kagan claimed that the dog fighting statute did not violate the Free Speech Clause. Chief Justice Roberts responded:
The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.
As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.
The opinion for Stevens is here.
Now fast forward to Monday’s decision in Brown which Justice Kagan joined. In Brown, Justice Scalia began his analysis—of whether California could ban the sales of violent video games to children—by noting that the Court had confronted similar First Amendment arguments in Stevens. Justice Scalia said that:
Last Term, in Stevens, we held that new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.
* * *
The Government argued in Stevens that lack of a historical warrant did not matter; that it could create new categories of unprotected speech by applying a “simple balancing test” that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test. We emphatically rejected that “startling and dangerous” proposition. “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.” But without persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, a legislature may not revise the “judgment
That holding controls this case.
[I removed the citations to Stevens for ease of reading.]
Justice Kagan was part of the majority in Brown even though as Solicitor General she argued a contrary position in Steven. (Deputy SG Neal Katyal actually argued the case, but, as principal SG, Kagan was the Counsel of Record for the U.S. on the briefs.)
Like I said, I don’t see any problem with changing sides. In fact, I don’t view the switch as an inconsistency. As SG, Kagan signed off on a brief arguing the government’s position; as Justice, she signed off on an opinion representing her personal views. And I am actually quite impressed that Justice Kagan’s representation in Stevens did not taint her personal views about the First Amendment in Brown.