One Thing We Know About Elena Kagan’s Views on Particular Free Speech Cases

As I’ve mentioned before, we don’t know much about Elena Kagan’s views on particular free speech cases, largely because much of her work has been analysis and synthesis of existing doctrine, rather than prescription about the way things ought to be. That’s a perfectly sensible approach, since the analytical components of an article are generally more useful to readers than the prescriptive components. But it does make her future votes harder to predict.

One thing that is clear, though, is that she would not have sided with the Justice she’s nominated to replace, Justice Stevens (or his colleagues Chief Justice Rehnquist and Justices White and O’Connor), and instead would have sided with Justices Brennan, Marshall, Blackmun, Scalia, and Kennedy in the flagburning cases. Writing about United States v. Eichman, she says, “[T]he Court, in invalidating the statute, made the correct decision.” 63 U. Chi. L. Rev. at 502. And it’s clear she would have reached the same result in Texas v. Johnson. (For whatever it’s worth, I agree with her on this.)

I believe this is the only occurrence of the phrase “correct decision” in her articles.