According to the Wall Street Journal, among the documents that the Senate Judiciary Committee has posted relating to the Kagan nomination are handwritten notes that the nominee made for a speech she was to deliver to Princeton University alumni in 2003. The notes, according to the Journal’s account of their contents, reveal Kagan’s misgivings about the Supreme Court’s decision in the Bush v. Gore election case. Kagan’s observations on that case, and related views on the notion of judicial restraint, raise significant questions that Senate Republicans should pursue vigorously during the hearings on Kagan’s nomination:1. Kagan evidently opines that judges “necessarily [and] inevitably” take into account “political [and] policy questions …” when deciding cases. Does Ms. Kagan really believe this? Does she really believe that it is inevitable – and appropriate – for judges to  give weight to political and policy concerns when deciding disputes? Is it really proper for a court to make a decision based other than on the facts of the case and the applicable law? There are many – including, presumably, the GOP members of the Judiciary Committee – who think that political and policy views most definitely DO NOT have any place in the judicial making calculus. If Ms. Kagan really believes that judicial decisions may properly be based upon policy or political principles, there is substantial question as to whether she is qualified to sit on the Court.

2. Kagan further observed that courts should “defer to the political branches” and exercise judicial review “with caution.” Assuming that Ms. Kagan believed that the Supreme Court had not shown proper deference to the “political branches” in Bush v. Gore, and had failed to exercise its review function with something other than caution, it bears asking what was (is?) her view on the various decisions of the Florida Supreme Court in the 2000 election debacle. What was the Supreme Court to do when presented with the decisions of a state tribunal that had not only not deferred to the legislative and executive branches proper exercise of their authority, but had in fact wholly ignored the considered decisions taken by the political branches and arrogated to itself functions that were solely and exclusively within the province of the political branches? Does her preference for deference to the political branches lead her to believe that the Florida Supreme Court acted in anything but a lawless manner? Somehow I think that we know the answer to the question, but it bears exploration.

3. Does Ms. Kagan believe that reviewing courts should show deference to the political branches when, for example, legislative enactments plainly violate express provisions of the Constitution? Does she believe that the Supreme Court failed to show such deference when it overruled the preferences expressed by the political branches in cases such as Roe v. Wade, the various Bush era terrorism cases? What are the limits of the deference to which she believes the political branches are due, and does that deference end with matters that reflect her own political and policy preferences?

Senate Republicans have an obligation to probe Ms. Kagan on thee matters, and to oppose her confirmation if they are not satisfied with the answers that they receive.

Once I have had the chance to fully review the notes in question, I may post an update with additional thoughts and questions.

The Wall Street Journal reports that the US Supreme Court has agreed to hear former Enron CEO Jeff Skilling’s appeal. Now we’ll see if there is any prospect that reason and fairness will prevail in the Enron witch hunt.

On this weekend’s installment of C-SPAN’s “America and the Courts” Justice Antonin Scalia spoke to and took questions from a group of high school students from Virginia (you can view the program at this link for a limited period of time). I highly recommend that you take a look if you have any interest in the Supreme Court. 

The Supreme Court ruled Wednesday that individual participants in the most common type of retirement plan can sue under a pension protection law to recover their losses.

The unanimous decision has implications for 50 million workers with $2.7 trillion invested in 401(k) retirement plans.

James LaRue of Southlake, Texas, said the value of his stock market holdings plunged $150,000 when administrators at his retirement plan failed to follow his instructions to switch to safer investments.

The issue in the LaRue case was whether the Employee Retirement Income Security Act permits an individual account holder to sue plan administrators for breaching their fiduciary duties.

The language of the law refers to recovering money for the “plan” rather than for an individual, raising the question of whether a participant can sue solely for himself.

Justice John Paul Stevens, in his opinion for the court, said that such lawsuits are allowed. “Fiduciary misconduct need not threaten the solvency of the entire plan to reduce benefits below the amount that participants would otherwise receive,” Stevens said.

The decision overturned a ruling by the 4th U.S. Circuit Court of Appeals in Richmond, Va.

Unlike people enrolled in traditional pension plans, employees in 401(k) plans, which have exploded in number in the past two decades, choose from a menu of options on where to invest their money. That puts workers squarely in the middle of decision-making about their pensions and inevitably leads to the kind of disputes LaRue has with his plan’s administrators.

“Defined contribution plans dominate the retirement plan scene today,” unlike when ERISA was enacted in the mid-1970s, Stevens said.

Many traditional pension plans guaranteeing a fixed monthly benefit have either been frozen or terminated, and 401(k) plans are the main source of retirement income, said the Air Line Pilots Association, which represents 60,000 pilots at 41 air carriers.

The Bush administration argued in support of workers. The government said the appeals court ruling barring LaRue’s lawsuit would leave 401(k) participants without a meaningful remedy from any federal, state or local court when plan administrators fail to live up to their duties.

Business groups supported LaRue’s employer. They argued that ERISA is aimed at encouraging employers to set up pension plans, while guarding against administrative abuses involving the plan as a whole. The law doesn’t permit individual lawsuits like LaRue’s, the business groups said.

Congress enacted ERISA after some widely publicized failures by companies and labor unions to pay promised pensions. Workers in class-action lawsuits have long relied on the law, most recently in the scandal-ridden collapses of companies like Enron and its 401(k) plan for workers.

The term 401(k) refers to a section of the Internal Revenue Code.

Participants in 401(k) plans do not know how much money they will receive in retirement. Employees invest a certain amount each month and how much they get back depends on how well their chosen investments have performed.

The case is LaRue v. DeWolff, 06-856

Source: Associated Press (via Law.com)

SCOTUS blog recently published an interesting post by Lyle Denniston discussing an amicus brief filed with the Supreme Court in the District of Columbia gun case by 55 senators and 250 members of the House of Representatives (you can find a copy of the brief here). The brief, which urges the Supreme Court to find that the Second Amendment protects and indivudual, as oppsoed to collective or communitarian, right to bear arms and to affirm the DC Circuit’s decision striking down DC’s ordinance banning the ownership and possession of handguns in the District, also had one additiona, notable signatory: Vice President Dick Cheney. Cheney joined the brief in his capacity as President of the Senate, a role explictly delegated to the vice president by the Constitution.

Cheney’s decision to sign the brief is notable because the argument set forth in the brief is at least partially at odds with the position that the Bush Administration, through the Solicitor General’s office, has taken. The Administration, while urging the Court to adopt an individual rights approach, nonetheless asks the Court to remand the case to the lower court for further proceedings to determine whether the District may nonetheless adopt the ban consistent with the Constitution’s protection of an individual right to bear arms. Needless to say, the decision by a sitting Vice President to sign onto a brief taking a legal position that is at odds, even partially, with the position taken by the administration of which he is a member, is highly unusual, if not unprecedented. Yet another interesting flourish to an already high profile case.