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Elena Kagan is up to something

Mark Joseph Stern
Thursday, June 21, 2018

So far this term, Justice Elena Kagan has crossed ideological lines at least three times to join the Supreme Court’s conservatives. On June 21, Kagan authored the majority opinion in Lucia v. SEC, a huge case that threatens to erode the political independence of multiple federal agencies. Kagan took the lead in authoring an opinion that prompted a sharp dissent by Justice Sonia Sotomayor, who accused her colleague of making legal and factual errors.

Richard Levy, a professor at the University of Kansas School of Law, told Slate that Lucia seems to leave room for the SEC to ratify the appointment of administrative law judges (AJLs), a step the commission has already taken. It also appears to be kosher for the commissioners to farm out the work of selecting ALJs to others, then provide formal approval. Still, the decision may infringe on the independence of ALJs, who are meant to be apolitical civil service employees. 

Faculty name: 
Richard Levy