From Aspen: Justice Kagan calls surveillance cases ‘growth industry’

By Alison Frankel
July 1, 2013

Speaking late Saturday afternoon at the Aspen Ideas Festival, U.S Supreme Court Justice Elena Kagan was every bit as diplomatic as you would expect a woman who has survived the Senate confirmation process to be. Chief Justice John Roberts? “A great chief justice,” who faces the “tall order (of) trying to forge agreement” on a court whose members traditionally treasure the right to go their own way. Justice Clarence Thomas? “I enjoy him enormously. He’s a justice with incredible integrity and a very principled one,” Kagan said. “We disagree on a lot of stuff and we’re going to disagree on a lot of stuff but I enjoy every moment I spend with him.”

And Justice Antonin Scalia, whose opinion in American Express v. Italian Colors was very emphatically disputed by Kagan? The justice told her interviewer, George Washington University law professor and New Republic legal affairs editor Jeffrey Rosen, that she and Scalia go hunting together a few times a year, a tradition that began when she promised one senator before the confirmation vote that even though she hadn’t held a gun – as a native of New York’s Upper West Side, she said, “that just wasn’t what we did” – she’d ask Scalia to take her out shooting. When she joined the court, she told Scalia that this was the single promise she had made in the confirmation process. “He thought it was hilarious,” she said. On their most recent trip, to Wyoming, Kagan shot a deer. (Kagan seemed quite proud of her prowess but the audience wasn’t as enthusiastic.)

When Rosen pressed the justice on how it feels to be in the minority on a court that so frequently divides along ideological lines, Kagan admitted that it’s sometimes hard to come to work the morning after realizing her side has lost the fight. “You’ll notice that at the moment we’re done, we all leave,” she said. “We need a little vacation from each other.” But she was quick to add, “We like each other very much…. We’re all grownups.”

Anyone hungry for hot SCOTUS dish, in other words, left Kagan’s talk with an empty stomach. But Rosen is a vastly talented Supreme Court analyst, so, of course, his real interest was talking to the justice about some of the court’s rulings this term. Kagan explained the DOMA, Voting Rights and Proposition 8 cases without resorting to crowd-alienating legalisms. She also talked about the significance of the Amex ruling, which she described as “affecting access to the courts, affecting (our) ability to hold large businesses accountable.”

That response led Rosen to ask about a common perception: Does the Roberts court favor businesses? Kagan trod carefully. “None of us decide cases based on who the party is,” she said. “But I do think in a number of cases … a majority of the court has a set of legal views that provides significant relief from both federal and state regulation to businesses.” In addition to the Amex case, she cited Koontz v. St. Johns River Water Management District, which provides insulation for property owners against government takings; Vance v. Ball State, which rules out employees’ harassment claims unless they’re based on actions by a supervisor; and Mutual Pharmaceutical v. Bartlett, which holds that consumers cannot bring state-law design defect claims against generic drugmakers. “The court has made it more difficult for injured persons to come to court, to use federal or state laws to hold large companies accountable,” Kagan said.

That was a bit more controversial than Kagan’s professions of great affection for the members of the conservative wing of the court, but to me, the most newsworthy moment in her interview came when she and Rosen discussed cases involving the Fourth Amendment, in which Kagan and her hunting partner Scalia have found unusual judicial common ground. Scalia tends to frame resistance to government intrusion on personal liberty as a matter of property rights, with the government cast as a trespasser when, for instance, investigators unleash a drug-sniffing dog on your front porch or install a GPS tracking device on your car without your permission.

Kagan said she believes that the expectation of privacy is at least as important as Scalia’s property rights theory of the Fourth Amendment. Rosen then asked about electronic surveillance, pointing to Justice Louis Brandeis’s dissent in the 1928 Supreme Court ruling Olmstead v. United States, in which Brandeis said, “as a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping.” Rosen said he knows Kagan shares his esteem for Brandeis. Would she follow the justice’s lead on electronic surveillance?

Rosen was clearly referring to the government’s recently disclosed collection of telephone and Internet data from entirely unwitting U.S. citizens. Kagan (who, remember, served in the Obama administration as solicitor general before joining the court) just as clearly knew the subtext of Rosen’s argument and avoided committing herself.

“That’s what we’re going to be dealing with over the next 10 or 20 years,” she said. “Fourth Amendment issues are a growth industry for the court.”

So, Supreme Court watchers, I think we can safely say that the justices are among those waiting eagerly to see what happens to suits challenging the government’s widespread data collection policy.

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