Kagan’s Scorecard: A look at cases she argued before the Supreme Court as solicitor general

By Ann Sanner, AP
Saturday, June 26, 2010

Kagan’s Scorecard: A look at cases she won, lost

WASHINGTON — Supreme Court nominee Elena Kagan has argued six cases before the high court as solicitor general, the government’s top lawyer before the high court.

The court has handed her three victories and one loss so far. The justices have yet to rule on one case and dismissed another without issuing an opinion.

Seth Waxman, a former solicitor general during the Clinton administration, says win-loss ratio is not a good way to measure effectiveness. It’s the solicitor general’s job to take on the hardest, often unwinnable, cases, he says.

Paul Clement, who served in that job under President George W. Bush, said he would be suspicious of a solicitor general with a perfect winning record. Both Clement and Waxman have endorsed Kagan for the Supreme Court.

A look at the cases that Kagan argued:


—Supreme Court justices voted 7-2 to uphold a federal law allowing for the indefinite imprisonment of inmates considered sexually dangerous. Although the dispute was over the continuing imprisonment of people who have finished serving their sentences, the issue before the court was whether Congress has authority to step into an area usually handled by the states. Kagan compared the government’s power to commit sexual predators with its power under the Constitution to quarantine federal inmates whose sentences have expired but have a highly contagious and deadly disease.

—By a 5-4 vote, the court refused to order the removal of a congressionally endorsed war memorial cross from its longtime home atop a remote rocky outcropping in California’s Mojave Desert. The court directed a federal judge to look again at Congress’ plan to transfer the patch of land beneath the 7-foot-tall cross to private ownership. Kagan argued that Congress’ action to transfer the land to private ownership fixed any constitutional violation involving the separation of church and state.

—In a 6-3 decision, the court upheld the government’s authority to ban aid to designated terrorist groups, even when that support is intended to steer the groups toward peaceful and legal activities. The court left intact a federal law that the Obama administration considers an important tool against terrorism. Kagan defended the law that bans groups from providing “material support” — everything from money to technical know-how to legal advice — to foreign terrorist organizations.


—Kagan’s first case before the court was also her biggest, and she lost. The result of Citizens United v. Federal Election Commission was a sweeping reversal of campaign finance laws, vastly increasing the ability of businesses and unions to spend millions to influence elections for president and Congress. The case had been expected to go against the government from the beginning. The justices voted 5-4 to strike down federal laws prohibiting corporations and labor unions from spending unlimited sums to call for the election or defeat of candidates for Congress and president.


—The court has yet to rule on a case over the composition of a board that was created by an anti-fraud law enacted in response to Enron and other corporate scandals. Challengers argue that the board created by a 2002 law violates the Constitution’s separation of powers mandate because the president cannot appoint or remove its members. They say the board wields too much, unchecked power. Kagan and the board has argued that it is constitutional because the president has ample authority to control what the board does, through the Securities and Exchange Commission.

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