Legal News

A Subtle Shift: The Role of the Likely New SG, Elena Kagan

By Ashby Jones

President Obama has already shown a willingness and desire to break with the policies of the past, and those of his predecessor. Nothing, frankly, too surprising about that. What is surprising, to us at least, is the degree to which his new solicitor general-appointee, Elena Kagan, might be encouraged to hew to positions argued by her immediate predecessors, Paul Clement and Gregory Garre.

Legal Times’s Tony Mauro makes the point in a recent article on Kagan and the role of the SG. Writes Mauro: “It is an unquestioned tradition, an article of faith, that because of the solicitor general’s special relationship with the Supreme Court, the arrival of a new administration of a different party does not—must not—mean a sudden shift in positions before the Court.”

Huh. That’s not something we knew. Even on some more controversial positions taken by the Bush administration, Kagan and the Obama administration might not reverse course wholesale. Mauro cites the example of Arizona v. Johnson, a recent search-and-seizure case in which the Bush administration took an especially provocative position. “If the issue came up again, Kagan would not likely repudiate the Bush position outright, or suddenly side with the defendant Lemon Johnson.”

Kagan, it seems, will be limited to more subtle shifts. The SG makes hundreds of strategic decisions about which lower-court decisions the government should or should not appeal to the Supreme Court, which can accelerate—or derail—an issue and help shape the Court’s docket to an administration’s taste.

But when a case is granted and the Court looks to the solicitor general’s office for its measured views, says former deputy AG Lawrence Wallace, “The dialogue is with the Court. And the Court has traditions that have to be honored.”

Photo: AP

Full post as published by Law Blog - WSJ.com on February 02, 2009 (boomark / email).