Kagan’s Supreme Court Stats
When I did the first post on Elena Kagan’s Solicitor General briefs, I indicated that she had submitted briefs in nine cases having employment law implications. As noted in my last post, one of them involved the same issue as New Process Steel v. NLRB recently decided by the Supreme Court. One of them (Mohawk Industries, Inc. v. Carpenter) is a strictly procedural case and doesn’t seem worth discussion for purposes of discerning anything about her labor and employment views.
That leaves seven cases, six of which have been decided by the Supreme Court. If you’ve been counting based on my previous Kagan posts, the Supreme Court sided with the arguments she was making in three cases and didn’t side with her arguments in three cases. The so-called “cat’s paw” case is still under consideration by the Court.
It’s difficult to take much away from these cases about her views on key labor and employment issues. She was representing the federal government in filing these briefs, and the briefs don’t necessarily represent her personal views, although they open a narrow window into her thinking. Only two of these cases are significant. One is the cat’s paw case, and the other is the email monitoring case. The latter case is the only one in which she sided with the employer.
Now we will await Kagan’s confirmation hearings, from which we will learn little. During the Sotomayor hearings, I pretty much blogged about each day. I won’t make that mistake again. The hearings are simply too shallow and scripted to find out much about the nominee. At this point, it appears she’ll be confirmed and that she’ll become part of the liberal wing of the Court.