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
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
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
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
- 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.