National Review piece: Kagan confirmation could “harm” small businesses

John Berlau in National Review: Kagan could mean “great harm” for small businesses based on her work as SG. In a July 29 piece for National Review, the Competitive Enterprise Institute's John Berlau argued that Kagan would be an anti-small business Supreme Court justice. His claims centered on arguments Kagan made as solicitor general in one case, Free Enterprise Fund v. Public Company Accounting Oversight Board. Berlau claimed that in that case, Kagan “effectively argued that small businesses that object to a particular law or regulation as unconstitutional should be held hostage to the administrative-review process of the agency responsible for enforcing that law or regulation.”

Berlau's piece -- headlined “Elena Kagan's War on Small Business: Solicitor General Kagan urged against letting a small firm challenge a regulatory agency in court. Would a Justice Kagan do the same?” -- said: “While Congress is claiming it wants to help small business, confirming Kagan could mean great harm to business owners crippled by costly regulation.”

Kagan's alleged anti-small business argument was first made by the Bush Justice Department

Kagan's alleged anti-small business argument was first made by the Bush Justice Department. The Kagan brief Berlau attacked argued that the Supreme Court should dismiss Free Enterprise Fund because the U.S. District Court for the District of Columbia “lacked jurisdiction because petitioners failed to exhaust the exclusive statutory review procedures.” But the Bush administration Justice Department made the same argument in lower court proceedings in the same case. From the 2008 decision in the lower court:

The Board and the United States contend, as a threshold matter, that the district court lacked jurisdiction because the Fund failed to exhaust the Act's statutory review procedures. The Act permits a person “aggrieved by a final order of the Commission” or a person “adversely affected by a rule of the Commission” to obtain review in the court of appeals.

The case involved a challenge to a section of the post-Enron Sarbanes-Oxley Act, a law that received wide bipartisan support. The case involved a constitutional challenge to the method for selecting members of the Public Company Accounting Oversight Board, an entity created by the Sarbanes-Oxley Act, a law written to respond to the accounting scandals involving Enron and other corporations. The final version of the law passed the House by a vote of 423-3 and the Senate by a vote of 99-0 and was signed by then-President Bush.

Legal experts: SG briefs aren't necessarily proof of Kagan's personal views

Legal experts say that Kagan's personal legal views can't be inferred from her actions as solicitor general. Pamela Harris, the head of Georgetown University's Supreme Court Institute, has said, “I don't think you can read almost anything” into the personal views of a solicitor general based on her representation of the United States. Lincoln Caplan, an expert on solicitors general, told The Washington Post, “It's a mistake to assume that every argument an SG makes on behalf of the government reflects her personal legal philosophy.”

Kagan stated during her SG confirmation hearings that she will represent the U.S. government rather than follow her personal views. In response to written questions submitted by senators as part of the confirmation process for Kagan's nomination as solicitor general, Kagan stated: “I am fully convinced that I could represent all of these interests with vigor, even when they conflict with my own opinions.”

Kagan's duty as SG is to make every reasonable argument to defend federal laws and actions. It is the role of the solicitor general to defend federal laws and actions, as long as there is a reasonable basis for them -- indeed, Sen. Orrin Hatch noted that at Kagan's solicitor general hearing, she “properly affirmed that the Solicitor General must make every reasonable argument defending the constitutionality of federal statutes.”

NR piece also misrepresented Kagan's testimony about environmental lawsuits

Berlau claimed Kagan “appeared sympathetic” to environmentalists during her confirmation hearings, but would “shut the courthouse door” on small business owners. Berlau wrote in his July 29 National Review piece:

In her confirmation hearings this summer, Kagan appeared sympathetic to a broad definition of injury when it comes to standing for activists filing environmental lawsuits. In response to a question from Sen. Dianne Feinstein, she told the Judiciary Committee on June 29 that an injury sufficient for standing “can be of many different kinds. It can be economic injury, but it can also be a kind of injury that you get when the environment is degraded and you can't use the parks in the way you would have wanted to use the parks.”

But for Americans who spend their time building businesses as well as going to parks, Kagan would apparently try to shut the courthouse door.

In fact, Kagan's statement about environmental lawsuits echoes Supreme Court precedent. In 2000 in Friends of the Earth, Inc. v. Laidlaw Environmental Services, the Supreme Court held by a 7-2 vote that the following injuries were enough to establish standing: Wanting to fish, camp, swim, and picnic in or near a river without it being smelly and polluted; wanting to picnic, walk, birdwatch and wade in that river; and having a lower property level because of pollution. From the opinion:

Focusing properly on injury to the plaintiff, the District Court found that FOE had demonstrated sufficient injury to establish standing. App. in No. 97--1246 (CA4), pp. 207--208 (Tr. of Hearing 39--40 (June 30, 1993)). For example, FOE member Kenneth Lee Curtis averred in affidavits that he lived a half-mile from Laidlaw's facility; that he occasionally drove over the North Tyger River, and that it looked and smelled polluted; and that he would like to fish, camp, swim, and picnic in and near the river between 3 and 15 miles downstream from the facility, as he did when he was a teenager, but would not do so because he was concerned that the water was polluted by Laidlaw's discharges. Record, Doc. No. 71 (Exhs. 41, 42). Curtis reaffirmed these statements in extensive deposition testimony. For example, he testified that he would like to fish in the river at a specific spot he used as a boy, but that he would not do so now because of his concerns about Laidlaw's discharges. Ibid. (Exh. 43, at 52--53; Exh. 44, at 33).

Other members presented evidence to similar effect. CLEAN member Angela Patterson attested that she lived two miles from the facility; that before Laidlaw operated the facility, she picnicked, walked, birdwatched, and waded in and along the North Tyger River because of the natural beauty of the area; that she no longer engaged in these activities in or near the river because she was concerned about harmful effects from discharged pollutants; and that she and her husband would like to purchase a home near the river but did not intend to do so, in part because of Laidlaw's discharges. Record, Doc. No. 21 (Exh. 10). CLEAN member Judy Pruitt averred that she lived one-quarter mile from Laidlaw's facility and would like to fish, hike, and picnic along the North Tyger River, but has refrained from those activities because of the discharges. Ibid. (Exh. 7). FOE member Linda Moore attested that she lived 20 miles from Roebuck, and would use the North Tyger River south of Roebuck and the land surrounding it for recreational purposes were she not concerned that the water contained harmful pollutants. Record, Doc. No. 71 (Exhs. 45, 46). In her deposition, Moore testified at length that she would hike, picnic, camp, swim, boat, and drive near or in the river were it not for her concerns about illegal discharges. Ibid. (Exh. 48, at 29, 36--37, 62--63, 72). CLEAN member Gail Lee attested that her home, which is near Laidlaw's facility, had a lower value than similar homes located further from the facility, and that she believed the pollutant discharges accounted for some of the discrepancy. Record, Doc. No. 21 (Exh. 9). Sierra Club member Norman Sharp averred that he had canoed approximately 40 miles downstream of the Laidlaw facility and would like to canoe in the North Tyger River closer to Laidlaw's discharge point, but did not do so because he was concerned that the water contained harmful pollutants. Ibid. (Exh. 8).

These sworn statements, as the District Court determined, adequately documented injury in fact. We have held that environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons “for whom the aesthetic and recreational values of the area will be lessened” by the challenged activity. Sierra Club v. Morton, 405 U.S. 727, 735 (1972). See also Defenders of Wildlife, 504 U.S., at 562--563 (“Of course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purposes of standing.”).