Brewing legal disputes could define Kagan’s early tenure

This summer, as Elena Kagan quietly moved toward confirmation to the Supreme Court, three major legal disputes took shape that could define her early years.

The justices soon will be called upon to decide whether states like Arizona can enforce immigration laws, whether same-sex couples have a right to marry and whether Americans can be required to buy health insurance. Kagan’s record strongly suggests she will vote in favor of federal regulation of immigration and health insurance and vote to oppose discrimination against gays and lesbians.

What is less clear is whether she will be voting with a center-left majority that includes Justice Anthony M. Kennedy, or as liberal dissenter on a court whose five Republican appointees outvote the four Democratic appointees.

Kagan, 50, is the fourth new justice in five years. And for the first time, the high court has three women. But the ideological divide is unlikely to change much.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. form a solid conservative bloc. The liberal bloc includes Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor, with Kagan now set to replace Justice John Paul Stevens, who retired at age 90.

In the major cases that divide the court, however, the outcome almost always depends on Kennedy, 74.

At this time last year, Kagan was preparing to defend the 63-year-old law that barred businesses from spending corporate money to elect or defeat candidates for office. It was her first argument before the court, and she expected to lose. Kagan had been a close student of the court’s work for two decades before becoming U.S. solicitor general, and she knew Kennedy believed that “corporate political speech” was fully protected by the 1st Amendment.

Her instincts proved correct. In January, she was on the losing end of the 5-4 decision in the Citizens United case, with Kennedy speaking for the conservatives and striking down the election spending limits for corporations and unions.

Kennedy has not tipped his hand in quite the same way on the upcoming disputes on immigration, healthcare and same-sex marriage.

Kagan began wooing Kennedy four years ago. As the dean of Harvard Law School, she invited him to be honored as a graduate of the class of 1961 and spoke glowingly of him as an independent-minded judge.

She noted Harvard University had published a recent ranking of its 100 most influential alumni, which put Kennedy in fourth place, higher than any other member of the Supreme Court.

“But judging is about more than power and influence. It’s also, indeed most fundamentally, about independence and integrity,” she said. “In fact, what Justice Kennedy has done, time and time again, in each and every case, is to think for himself. He probes. He questions. He tries to determine — putting aside any preconceptions or prejudices — which side of a dispute is truly right.”

That is the source for “his obviously huge influence on the current court,” she said.

Kennedy also may find himself looking toward Kagan for support in the coming year.

He “will now become the senior justice any time he sides with the four moderately liberal justices,” said Walter Dellinger, a former solicitor general in the Clinton administration. In that role, Kennedy would be deciding how best to write an opinion that speaks for a five-justice liberal majority that includes Kagan.

The immigration issue presents a dispute between the state of Arizona, which wants stricter enforcement, and federal authority. The state says it will appeal to the Supreme Court a lower court ruling striking down its law requiring police to check the immigration status of those who are arrested.

Before that case arrives, however, the high court will decide another Arizona immigration case that involves sanctions against employers who hire illegal immigrants. Kagan worked as an executive-branch lawyer in two Democratic administrations, so she is likely to vote for strong federal authority over immigration. But her support for executive power may tilt the court to the right on issues concerning the president’s power to pursue accused terrorists as enemy combatants. Stevens was the leading voice for limits on presidential power.

Meanwhile, a legal threat to President Obama’s healthcare overhaul law grew last week, when a federal judge in Virginia hinted he was likely to strike down the mandate to have health insurance as being beyond Congress’ power. “Never before has the Commerce Clause … been extended this far,” said U.S. District Judge Henry E. Hudson.

In the past, Kennedy has voted to strike down federal laws on similar grounds, but he has also joined opinions that said Congress can regulate any “economic activity.”

Last week’s ruling by Judge Vaughn R. Walker striking down California’s ban on same-sex marriage will almost certainly send that case to the Supreme Court. At Harvard, Kagan spoke out strongly against discrimination against gays. She called the U.S. military’s ban on openly gay service members a “profound wrong and a moral injustice of the first order.”

Kennedy has also written the court’s two strongest gay-rights opinions. One in 1996 struck down a Colorado anti-gay voter initiative which Kennedy said was “born of animosity” toward gays. A second in 2003 struck down a Texas law that treated gays as criminals, saying that “moral disapproval” does not justify treating gays as “unequal in the eyes of the law.”

In the Texas opinion, Kennedy included a caveat: The court was not saying the state “must give formal recognition to any relationship” between gays, he said then. He has been wary of the court moving ahead of public opinion on a controversial issue.

But thanks to Walker’s decision, the question of a state’s duty to give “formal recognition” to same-sex relationships will soon be before Kennedy and the court.

david.savage@latimes.com