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WPCNR LAW JOURNAL.   From  the Transcript of  U.S. Senate Judiciary Confirmation Hearing Questioning of Justice Elena Kagan Supreme Court Nomination Hearing. June 3, 2023:

(Editor’s Note: The following is from the transcript of the questioning and testimony of Elena Kagan during her Confirmation Hearings held in the summer of 2010 before the U.S. Senate Judiciary Committee.

This excerpt demonstrates now Associate Justice Kagan’s answers then and the effects of the Roberts court willingness to make new interpretations not only tweaking but reinterpreting anew critical Supreme Court decisions of the past, that  have upended  the effects of those past Supreme Court decisions going back decades. The questioning of the now Associate Justice is enlightening and demonstrates the philosophic issue that is guiding the  present court that we can expect more of the same.

Ms. Kagan was confirmed 63-37  August 5, 2010 by the U.S. Senate 13 years ago. The transcript was pointed out to WPCNR by the Delray Democrat publication in Delray Beach, Florida.)


in your conversation with Senator Kyl. You said that “one of

the glorious things about courts is they provide a level

playing field in all circumstances.” And that we need to

“make sure that every single person gets the opportunity to

come before the Court and gets the opportunity to make his best

case and gets a fair shake.”

I want to discuss something that is denying more and more

working Americans that precious day in court, that fair shake–

and that is mandatory arbitration. Now, arbitration has its

place, but I am talking about mandatory arbitration.

Chances are if you have a cell phone or a credit card or if

you work, you are likely to have signed a contract with a

mandatory arbitration clause. These clauses basically say if we

violate your rights, you cannot take us to court. You have to

take it to an arbitrator. But then the fine print essentially

says an arbitrator that we pay, who depends on us for work, and

who makes decisions in secret.

So a lot of people are denied their opportunity to come

before the court. Unfortunately, we have seen a series of

decisions from the Supreme Court that have made it even harder

for people to get that fair shake, as you put it.

In 2001, in a case called Circuit City, the Court was asked

to decide whether workers’ employment contracts could be

subject to mandatory arbitration. This really should have been

a no-brainer because the Federal Arbitration Act of 1925, the

law that says which arbitration agreements should be enforced,

specifically exempts “contracts of employment of seamen,

railroad employees, or any other class of workers engaged in

foreign or interstate commerce.”

Organized labor had asked for this specific language to be

included to make sure the Act would not apply to workers’

employment contracts. In fact, then-Commerce Secretary Herbert

Hoover said during a Senate hearing, “If the objection appears

to the inclusion of workers’ contracts in the law’s scheme, it

might well be amended by stating that nothing herein contained

shall apply to the contracts of employment of seamen, railroad,

employees, or any other class of workers engaged in interstate


Secretary Hoover was saying that if Congress wanted to make

clear that the Federal Arbitration Act did not apply to

employment contracts, Congress should put this language in the

statute. So Congress put the language in the statute.

But when Justice Kennedy wrote the majority opinion in

Circuit City, he ignored the history. He wrote, and I quote,

“We need not assess the legislative history of the exclusion


Let me repeat that. “We need not assess the legislative

history of the exclusion provision.”

And based on a strained reading of the law, he decided that

the exception only applied to workers in the transportation

business, not any class of workers. This means that instead of

all workers getting their day in court like Congress clearly

intended, only transportation workers would get it, and that

excludes the vast majority of American workers.

General Kagan, I really disagree with this case and the way

the Court ignored Congress’ intent. That is why I was glad to

hear your response to one of Senator Schumer’s questions about

how the Court should interpret statutes. You said that, among

other things, “I think a judge should look to the history of

the statute in order to determine Congress’ will.”

General Kagan, we spend a lot of time in hearings and on

the floor debating legislation. How much weight do you think a

judge should give to the deliberations of Congress and the

reasons why we passed the law in the first place?

Ms. Kagan. Well, Senator Franken, the most important thing

in interpreting any statute–in fact, the only thing that

matters in interpreting any statute is Congress’ intent.

Congress gets to make the laws under Article I of the

Constitution, and what the Court should be doing in applying

those laws is trying to figure out what Congress meant and how

Congress wanted the laws to be applied. And that is the only

thing that the Court should be doing.

Now, sometimes that can be a difficult task. New situations

come up. The statutory language, it is not clear how the

statutory language applies to those new situations. Or

sometimes Congress might simply not have thought of particular

situations. Language is by necessity inexact. And so there are

going to be cases which—-

Senator Franken. Do you agree with Justice Kennedy we need

not assess the legislative history of something?

Ms. Kagan. Well, I would say this. I would say where the

text is clear a court should go with the text. Where the text

clearly covers some situation, the Court should do that. The

Court should not rewrite the law.

Senator Franken. But shouldn’t the Court assess that, make

an assessment there?

Ms. Kagan. Well, I think if the text is clear, Congress

should not–the Court should not rewrite the law. But where the

text is ambiguous, which often happens—-

Senator Franken. And wouldn’t you have to assess whether it

is ambiguous?

Ms. Kagan. Yes. I mean, the first step—-

Senator Franken. So what Justice Kennedy said does not

quite stand up to that, does it?

Let me move on on that. We in Congress, we want to make

sure, all of us, that our intentions are clear so that 75 years

from now the Supreme Court does not just ignore the purpose

behind the laws we are passing. How can we do that? How do we

do that? How do we make it clear to future Justices?

Ms. Kagan. Well, the Court surely would be helped if

Congress spoke as precisely and exactly and as comprehensively

as it could in all situations. You know, there are some

instances where the Court just has legitimate difficulty trying

to figure out what Congress intended, and where judges–all of

whom agree that what they should be doing is doing what

Congress intended–have difficulty determining that or disagree

about what that means. And certainly to the extent that

Congress can make its intentions clear in legislation and can

specifically spell out how it intends for the law to operate,

Congress ought to do so.

And, of course, you know, to the extent that the Court gets

something wrong with respect to a statute–and this has

happened, you know, many times in recent years and in prior

years as well. To the extent that the Court gets something

wrong, of course, Congress can come back and change it and make

it clear that the Court got it wrong and also use it as an

opportunity even to make clear its intentions with respect to a

general area of law.

Senator Franken. OK. It is hard to do 78 years from now,

but we will try.

Circuit City was a Rehnquist Court decision. Just last

week, the Roberts Court did Circuit City one better in helping

employers keep their workers out of court and into arbitration.

It happened in a case called Rent-A-Center v. Jackson, which

Senator Feingold noted yesterday. Rent-A-Center had 21,000

workers and hundreds of millions of dollars in annual profits.

It also forces its workers to sign a mandatory arbitration

agreement as a condition of employment.

Antonio Jackson, an African-American account manager in

Nevada, had been working for Rent-A-Center for years, but he

was frustrated because he watched his company pass him over for

promotions again and again. Instead, they promoted workers who

had less experience and who were not black. Although Jackson

signed an employment contract agreeing to arbitrate all

employment claims, this seemed blatantly unfair, and he sued


But the company argued that only the arbitrator could

decide whether the arbitration clause was unfair.

Let me repeat that: Rent-A-Center argued that only the

arbitrator could decide whether the arbitration clause was


Last week, the Roberts Court sided with Rent-A-Center. Talk

about not getting your day in court. Now you cannot get your

day in court to get your day in court.

Now, General Kagan, I know I probably cannot ask you about

whether you think this case–well, I can ask you, but you will

not answer–whether this case was correctly decided, but I

would like to ask do you still agree with what you said

yesterday to Senator Kyl, that “one of the glorious things

about courts is that they provide a level playing field in all

circumstances.” And that we need to “make sure that every

single person gets the opportunity to come before the court and

gets the opportunity to make his best case and gets a fair

shake” ?

Ms. Kagan. Well, I do agree with that very strongly,

Senator Franken, and if I might, if I might just return to this

question of statutory interpretation that you started off with,

because I did want to make clear that when a text is ambiguous,

which, you know, frequently happens–which frequently happens–

that I think that the job of the courts is to use whatever

evidence is at hand to understand Congress’ intent. And that

includes exploration of Congress’ purpose by way of looking at

the structure of the statute, by way of looking at the title of

the statute, by way of looking at when the statute was enacted

and in what circumstances, and by way of looking at legislative


Now, I think courts have to be careful about looking at

legislative history and make sure that what they are looking to

is reliable. But courts should not at all exclude signs of

congressional intent and should really search hard for

congressional intent when the text of the statute itself is


Senator Franken. Good. Then I think you and I agree that

Justice Kennedy may have been in error when he said that the

Court does not have to assess the legislative history.

Ms. Kagan. Well, I suspect that–I do not know the case

very well. I suspect that Justice Kennedy may have meant that

he thought that the text was clear and, therefore, the

legislative history was not something that should appropriately

be explored. But I am just guessing on that.

Senator Franken. OK. I think you are guessing wrong.

Ms. Kagan. OK.


Senator Franken. General Kagan, you have gotten a lot of

questions about—-

Ms. Kagan. It is not the first time in my life.

Senator Franken. Nor the last. We all guess wrong.

You have gotten a lot of questions about Citizens United. I

am going to try to bore down a little deeper on this. First I

want to make it totally clear that a full 80 percent of

Americans that hear about this case just think it is a bad

idea. The first problem is the impact it is going to have on

our communities and our ability to run those communities,

because the potential for corporate influence on our elections

under Citizens United is going to dwarf what it is today and

may very well totally drown out individual citizens.

Before Citizens United, if a corporation wanted to run an

ad that said “Vote for Joe,” it could only use money from its

political action committee, or PAC. Those PACs relied on

donations from employees and executives, individuals in those

corporations. In the 2008 cycle, all Federal PACs combined

spent a total of $1.2 billion. Now, after Citizens United, if a

corporation wants to run an ad that says “Vote for Joe,” it

can use all of its money–its treasury funds, its revenues, all

of its money. In the 2008 cycle, the combined gross revenue for

Fortune 100 companies was $13.1 trillion. Now, obviously, they

are not going to spend all that money on ads or all of it on

just any election. They would spend a lot–but they can spend

billions. They could have spent under this law billions when we

tried–when we passed the law that took the lead out of

gasoline, when we passed the law that required seat belts, and

they are going to spend it when we try to protect against oil

drilling in deep water when we do not have safety precautions

or Wall Street fraud. They are going to spend their money

against the consumer and environmental laws that protect our

families and our homes.

General Kagan, this is one of the last things that Justice

Stevens said in his dissent: “At bottom, the Court’s opinion

is a rejection of the common sense of the American people who

have recognized the need to prevent corporations from

undermining self-government since the founding.”

What do you think that means, General Kagan?

Ms. Kagan. Well, Senator Franken, when I argued the case, I

thought that the strongest argument of the Government was the

very substantial record that Congress puts together, which I

think reflected the sense of the American people that these

monies from these actors spent in this form could have

substantial corrupting effect on the political process. And

that is the argument that the Government made to the Court.

Now, as I have indicated before, I approach this case as an

advocate, not as a judge, and there are certainly strong

arguments on the other side as well. And in particular, there

is the fact that political speech is the highest form of speech

under the First Amendment entitled to the greatest protection,

and that the courts should be wary of Congress regulating in

this area in such a way as to protect incumbents to help

themselves. And I think that those are strong arguments.

The argument that the Government made in defense of the

statute as against that was really an argument about the

strength of the governmental interest involved in this case in

preventing corruption from this kind of expenditure of money.

Senator Franken. General Kagan, another problem with

Citizens United was how it was decided, because it was decided

in a manner that was really unfair to the American people, and

let me explain.

When you go to trial, you make arguments and you introduce

evidence to back up those arguments. Now, you cannot introduce

evidence after trial, so if you appeal, you cannot just come up

with a new argument because the appeals court does not have any

evidence to decide it on.

This is why there is an old rule that the Supreme Court

should not answer questions they are not asked. Or as Justice

Scalia said to you in your first oral argument on this, “We

are not a self-starting institution. We only disapprove of

something when somebody asks us to.”

If the Court expands the scope of the question before it–

this is me now–it will not have the evidence it needs to

decide that question. But that is the opposite of what the

Court did in Citizens United. In Citizens United, the plaintiff

argued and presented evidence on this question: Should a

certain part of McCain-Feingold apply to certain kinds of

nonprofits? And that is not the question that the Roberts Court


This is how the Roberts Court answered: No, McCain-Feingold

should not apply to nonprofits or for-profits or unions, and

neither should a different law that Congress passed 40 years

ago. In fact, both of those laws are unconstitutional for


Because the Roberts Court answered a question it was not

asked, it never got evidence on how McCain-Feingold was

actually affecting most nonprofits or any for-profit

corporation or union.

This is what you said in the case, in your argument–or

this is what you said actually here in the hearing: “What the

Government tried to argue in Citizens United was that Congress

had compiled a very extensive record about the effects of these

expenditures by corporations and unions on the political

process. And what the Congress had found was that these

corporations and unions had a kind of access to Congressmen,

had a kind of influence over Congressmen that changed outcomes

and that was a corrupting influence on Congress. That was a

many, many thousand page record.”

So this finding of fact was ignored because it had to be.

As Justice Stevens said, “the record is not simply incomplete

or unsatisfactory. It is non-existent.”

General Kagan, you were criticized at the beginning of this

for being outcome-or results-oriented, especially in your bench

memos to Justice Marshall. How is this for guaranteeing an

outcome? You wait until the case is out of the trial court. You

wait until it is too late to submit evidence. You wait until

the institution that wrote the law can no longer submit

evidence. You wait until the appeal has been argued in the

circuit court. You wait until the oral argument before the

Supreme Court–you wait until the argument, oral argument

before the Supreme Court. And then you change the issue under

consideration to get the outcome you want. If that is not

outcome-oriented, I do not know what is.

I would love to ask you if you agree, but, you know, I do

not want to force you to criticize your future colleagues. So

instead let me see if you agree with some general statements of


In general, do you agree with Justice Scalia that the

Supreme Court is not a self-starting institution that should

only disapprove of something when somebody asks it to?

Ms. Kagan. That is certainly true. It is a basic postulate

of the way we run our judicial system that the Court does not

issue advisory opinions, that the Court does not issue opinions

on anything except what is necessary to decide a concrete case

or controversy before it.

Senator Franken. OK. How about this? Here is something that

Chief Justice Roberts said when he was a circuit court judge.

He said, “If it is not necessary to decide more, it is

necessary not to decide more.” Do you agree with that?

Ms. Kagan. I do agree with that, Senator Franken. That,

too, is a basic principle of our legal system. It is a

requirement of–or it is a foundation stone of judicial


Senator Franken. Well, I am glad you agree with that.

Do you agree with Chief Justice Roberts that courts should

decide matters as narrowly as possible?

Ms. Kagan. Yes, I do, Senator Franken, in part for the

reasons I was discussing with Senator Whitehouse, that this

leads to a kind of restrained decisionmaking in which consensus

can be most easily achieved and appropriate and restrained

outcomes most easily reached.

Senator Franken. OK. I would be the last person to draw

conclusions from your answers. But—-


Senator Franken. To be honest, in Citizens United I do not

think Justice Stevens–I am sorry, Justice Scalia or Chief

Justice Roberts adhered to their own principles. I think they

were legislating from the bench.

I want to talk about–a lot of people talked about Exxon,

but there are a couple of other Supreme Court decisions that

dramatically weakened our ability to protect the environment.

Senator Feinstein asked you about one of those cases yesterday,

the Rapanos case, and you said that you were not familiar with

  1. So let me just summarize it very quickly.

In Rapanos, the Supreme Court looked at what kinds of

wetlands are protected in the Clean Water Act. After Congress

passed the Act in 1972, the EPA and the Army Corps of Engineers

passed regulations to enforce it. Basically, the Act said that

it covered navigable waters. But the Army Corps realized that

to protect those navigable waters, it also had to protect the

wetlands and streams that fed into or were near those navigable

waters, you know, because it is water. And so they did.

The Corps extended coverage to those waters, too, but in

Rapanos the Court struck down these regulations because it said

they were too broad even though they had been placed for up to

30 years and were actually necessary to protect America’s

water. And this water is what people drink, people catch fish

in, and that our kids swim in.

Thanks to this case and a similar case known as SWANCC, the

Clean Water Act now does not cover half of the nation’s largest

polluters, and thanks to these cases, a lot of western

Minnesota is outside the protection of the Clean Water Act, and

so is a large part of the Gulf Coast.

Yesterday you discussed the Chevron doctrine with Senator

Feinstein. As you explained, Chevron says that the courts

should generally defer to agencies and their regulations

because “Congress would have wanted that the entity with

political accountability and expertise to make the decision

rather than the courts.”

So let me ask you a few questions. General Kagan, can you

tell me how many of the Supreme Court Justices have a degree in

the environmental sciences?

Ms. Kagan. Well, gosh, I do not know, Senator Franken.

Senator Franken. I do not either. I think it is none.

Ms. Kagan. Okay.


Senator Franken. Can you tell me do they have a degree in

public health? We are going to both guess together.

Ms. Kagan. I will guess none.

Senator Franken. That is what I would guess, too.

Now, of course, the Court has to make decisions in areas

where they do not have expertise or personal knowledge. But

when they rewrote the Army Corps of Engineer regulations on

wetlands, the Roberts Court did not have any special subject

matter expertise on that issue.

General Kagan, what does Chevron protect if it does not

protect regulations issued 30 years ago that were never

questioned by Congress and were enforced repeatedly during that


Ms. Kagan. Well, Senator Franken, Chevron says that where

there is ambiguity in a Congressional statute–where there is

not ambiguity, you just go with what the statute says; but

where there is ambiguity, that an agency’s interpretation of

what Congress intended for a statute to mean should receive

deference from the courts. And the idea really is that the

agency is better able to clarify that ambiguity because it has

a kind of expertise in the area and also because it has real

political accountability through the President, and the courts

have neither expertise in one of these various technical

subjects, nor do the courts have electoral legitimacy. The

courts are by design cut off from the people.

So for both competence reasons and legitimacy reasons,

Chevron says, as between courts and agencies in interpreting

unclear statutes, you should give the nudge to agencies, that

courts should defer to their decisions. It is actually a

Justice Stevens opinion. I think it is one of the most cited

cases, maybe the most cited case in Supreme Court history.

Senator Franken. And yet in this case, the Court did not

give deference to that, did it?

Ms. Kagan. Senator Franken, as I indicated to Senator

Feinstein, I have not read this opinion ever. I think that, you

know, this might be one where—-

Senator Franken. If you trust me on my description of it,

which is–oh, never mind. Why would you do that?


Senator Franken. OK. Let us say my description was

accurate. Does it strike you that maybe they did not give

proper deference–I know it is a hypothetical, but my

description would be accurate.

Ms. Kagan. You know, I have been an administrative law

professor, and Chevron is actually something that I have

written a good deal about, and I think I have written about it

in a–beyond the fact that Chevron is obviously settled law,

going forward, I have to say if you look at my writings on

administrative law, you know that I am a sympathizer with

Chevron for the kinds of reasons that I just suggested.


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