Although she will probably not answer any questions, these are some of the issues I would probe Elena Kagan with, if I were sitting on the Judiciary Committee.
1. Do you agree with the holding in District of Columbia v. Heller?
2. In District of Columbia v. Heller, Justice Scalia wrote that regulations on guns in “sensitive places” are constitutional places. Logically, if there are sensitive places, there must be non-sensitive places. What is an example of a non-sensitive place where gun regulations are not proper?
3. Regardless of what you think of the Court’s recent opinion in McDonald v. Chicago, have you had the opportunity to review the opinion by the 7th Circuit below? The 9th Circuit opinion in Nordyke v. King? If so, among those two opinions, which do you feel is a more faithful interpretation of the right to keep and bear arms as it applies to the states.
4. This term in McDonald v. Chicago, the Court considered two possible paths for incorporation of the Second Amendment – the due process clause of the 14th amendment and the privileges or immunities clause of the 14th amendment. While the majority of the justices relied on the due process clause to extend the right to keep and bear arms to the states, [Justice Thomas and/or Justice Kennedy] sought to rely on the privileges or immunities clause. While you have not yet had time to review this case, what is your understanding of the meaning of the privileges or immunities clause, and what rights do you think it protects?
5. Earlier this month in Quon v. City of Ontario, the Supreme Court held that the search of a police officer’s text messages was reasonable, and therefore his Fourth Amendment rights were not violated . How do you see our right to be free from governmental searches and seizures evolving as different and new technologies progress?
6. The Fourth Amendment provides that “nor shall private property be taken for public use without just compensation.” In Kelo v. City of New London, decided 5 years ago, the Supreme Court gave a very broad definition to “public use,” finding that any taking of property that stimulates financial activity would be considered a public use. Can you give me an example of a [hypothetical or real] taking that would not be a “public use”?
7. In Crawford v. Washington, the Supreme Court strengthened the Sixth Amendment right for a criminal defendant to confront his accuser. Last year in Melendez-Diaz, the Court held that a lab technician who prepares a report must testify in Court, as this “testimonial” evidence must be subject to the demands of the Confrontation Clause. In dissent in Melendez-Diaz, Justice Kennedy wrote that forcing lab technicians to testify would put significant burdens on the criminal justice system. How would you balance the constitutional right to confronting your witness with the need for a swift and efficient criminal justice system.
8. In recent Eighth Amendment cases, the Court has relied on the “national consensus” model to determine whether a form of punishment is unconstitutional. In 2008, the Supreme Court decided Kennedy v. Louisiana and found that the execution of a child rapist is unconstitutional. To arrive at this result, the Court found that no other law in the United States permits such executions–but they neglected to count a recently enacted federal statute for the military that permitted such executions. This term in Graham v. Florida, the Court found that juvenile life without parole is unconstitutional. The Court made another counting mistake, however, and improperly tabulated the number of juvenile prisoners in the federal system serving a sentence of life without parole. In light of these glaring numerical errors in questions of massive constitutional significance, would you continue to endorse the national consensus model? If not, which model would you prefer? And would you consider looking to foreign and/or international law to find such consensuses?
9. Do you think the Ninth Amendment protects any enforceable rights? If so, what are these rights?
10. Do you think the rights reserved to the people under the Tenth Amendment place any limitations on the ability of the federal government to impose obligations on people?
11. What standard would you use to determine whether Congress can abrogate a state’s sovereign immunity using the power of the Fourteenth amendment? Do you agree with the “congruent and proportional” standard endorsed in Boerne v. City of Flores?
12. The Thirteenth Amendment bans “involuntary servitude.” Several scholars have written that the Thirteenth Amendment forbids the government from placing any limitations on access to abortion, in that forcing a mother to carry a child to term is a form of “involuntary servitude.” Do you think the Thirteenth Amendment places any limitations on regulating abortions?
13. In Ricci v. Destefano, the Supreme Court held that the New Haven fire department violated the constitution by throwing out test results that showed african-americans performed worse on a test. While the Court decided this case on a statutory basis, in a prescient concurring opinion, Justice Scalia wrote that the doctrine of disparate impact may be in tension with the equal protection clause. Scalia wrote that the “dispute merely postpones the evil day on which the Court will have to confront the question.” You may be on the Court when the Court confronts the question. Do you think these items are in tension?
14. In Ledbetter v. Goodyear Tire, the Supreme Court held that because Lilly Ledbetter filed her claims of pay discrimination too late, the statute did not permit her to recover. In a passionate dissent read by Justice Ginsburg from the bench, Ginsburg wrote that this case was a huge set back for women’s rights. For the majority, Justice Alito admitted the result did not make sense, but it was up to the legislature, and not the court to rewrite bad statutes. Shortly after President Obama was elected, Congress enacted the Lilly Ledbetter Fair Pay Act, which remedied this statutory flaw. When is it appropriate for the Court to reinterpret statutes, and when is it appropriate for the Court to wait for Congress to remedy statutes?
15. In Planned Parenthood v. Casey, the Supreme Court refused to overturn Roe v. Wade, and wrote that “liberty finds no refuge in a jurisprudence of doubt.” Stare decisis, or the reliance on previous cases creates certainty and reliance interests. Yet, most of our landmark opinions represented departures from longstanding precedents. Brown v. Board overturned Plessy v. Ferguson, finding that separate is not equal. Lawrence v. Texas overturned Bowers v. Hardwick, finding that the state cannot ban sodomy. How do you determine when the competing interests of stare decisis are to be disregarded?
16. –Followup question: In Citizens United v. FEC, which overturned a 20 year old precedent–Austin— that allowed limitations on the amount corporations could donate to advocacy advertisements, Justice Stevens wrote that “The only relevant thing that has changed since Austin and McConnell is the composition of this Court.” Do you agree that stare decisis and following precedent should have compelled the Court to uphold the constitutionality of the campaign finance laws?
17. Last term, the Supreme Court decided Ashcroft v. Iqbal. This case in theory made it significantly more difficult for a plaintiff to bring a suit in federal court, though early studies don’t seem to show a statistical effect. How would you balance the need to provide access to the federal courts with the need to reduce the burden on our courts, and minimize the number of frivolous law suits and litigation?