Bench Memos

Elena Kagan’s About-Face on Citizens United as “Settled Law” That “Bound” Her

At her confirmation hearing (searchable transcript here), in an exchange with Senator Hatch, Elena Kagan described Citizens United as “settled law going forward.” In a follow-up exchange, Senator Cornyn asked:

I was pleased to hear you say that, once decided by the Supreme Court, even by a 5-4 margin, that cases like Heller, McDonald, and Citizens United are–are the law of the land and entitled to–entitled to deference by succeeding Courts, even if you may disagree with the outcome. Did I state that correctly?

Kagan replied: “Yes. Surely. The entire idea of precedent is that you can think a decision is wrong, you can have decided it differently if you had been on the Court when that decision was made, and nonetheless you are bound by that decision.” (Emphasis added.)

She added that a judge (including, the context clearly indicates, a Supreme Court justice) “should view prior decisions with a great deal of humility and deference.”

Today, by contrast, Kagan joined Justice Breyer’s dissent in the Montana campaign-finance case, in which he stated that he “disagree[s] with the Court’s holding” in Citizens United and that, if he saw a “significant possibility of reconsideration,” he “would vote to grant the petition for certiorari in order to reconsider Citizens United or, at least, its application in this case.” 


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