I’m not naïve. I know that Elena Kagan is liberal. Most likely, she will fiercely defend legalized abortion, and I suspect that I’ll frequently disagree with her rulings. However, there are some good reasons to believe that she appreciates the value of academic freedom and free speech. I cannot think of another Ivy League dean who had a greater commitment to intellectual diversity than Elena Kagan (and I’m not alone in that assessment). She brought several outstanding conservative scholars to Harvard Law School and was a well-known friend of the campus chapter of the Federalist Society. Of course, that doesn’t mean she agreed with the Federalist Society (though there are some indications that she’s not necessarily a down-the-line doctrinaire leftist), but one does not have to agree with speech to support its place in the marketplace of ideas.
When I was at HLS, there were very few conservative voices on the faculty, and — even worse — across the faculty and administration there existed a real sense that conservative ideas were thoroughly discredited and hardly worth addressing. In other words, the absence of conservative voices was considered no loss at all. While I did not attend HLS during the Kagan regime, I have interacted with many conservatives who did, and their accounts are almost uniformly positive. In short, the contrast with the prior regime could not be more stark.
Free speech and academic freedom are not Left/Right issues. I have seen conservative judges slam the courthouse door in the face of conservative speakers with meritorious claims, and I’ve seen liberal judges rule decisively against speech codes. So to call Elena Kagan “liberal” says almost nothing about her potential free-speech jurisprudence. Her actions, however, indicate that she values different perspectives — including conservative perspectives.
In the coming years, I expect to see a series of university free-speech cases come before the Court — including perhaps cases that determine the limits of professors’ academic freedom – and I would not be surprised if Elena Kagan rules for the free exchange of ideas.