On May 10, 2010, President Obama nominated Solicitor General Elena Kagan to the U.S. Supreme Court. There has been much discussion on both sides of the political spectrum as to what her views are, in light of the dearth of her writings that are available for public review. What, then, can we discern about her leanings in cases involving trade associations?
First, we have her employment history. Prior to her confirmation as the 45th Solicitor General of the United States in March 2009, she served as both professor and dean of Harvard Law School, a 501(c) organization. She will provide the perspective on the Court of one who has actually administered a nonprofit organization.
Second, we have the filings and oral arguments her office made to the Supreme Court during her tenure as Solicitor General. While these filings and arguments are of limited value since they were made in her capacity as the Solicitor General in performance of the duties of her office rather than in her individual capacity, one is instructive. In Citizens United v. Federal Election Comm’n, Kagan, on behalf of the United States, took the position that the government could regulate the political speech of a corporation, in this case, a nonprofit corporation that released a documentary that was critical of then-Senator Hillary Clinton, a candidate for the Democratic Party’s Presidential nomination. The Supreme Court rejected her argument and issued an opinion favorable to the nonprofit organization and its freedom of speech. Nevertheless, her study and preparation of that argument will doubtless inform her work on the Court.
Third, she has written on notable topics. Particularly, in Presidential Administration, 114 Harv. L. Rev. 2245 (2001), she offered a broad defense of the regulatory power of the President. To the extent that regulation is pointed at nonprofit organizations and their members, she might take an expansive view on the Court in defense of such regulations.
In summary, we believe Solicitor General Kagan will likely have sensitivity to the real world in which nonprofit organizations work. Where those interests conflict with administrative regulations, though, nonprofit organizations probably should not count on her vote.