No one has asked me, but I have a question to which I would love to get Solicitor General Kagan’s answer. Last October, in her second appearance before the Supreme Court, she defended the federal government’s position on the validity of a Congressionally authorized land swap in the Mojave Desert that left a Latin cross standing on land that had once been federal property, but was now privately owned. The question in the case, Salazar v. Buono, was whether this extremely odd real estate deal was a proper response to a decision that a private citizen had won in a lower court, which ruled that it was unconstitutional for the cross to be displayed on federal land.
Ms. Kagan argued that the plaintiff, Frank Buono, no longer had standing to pursue his challenge because he had testified earlier that as a Catholic, he had no general objection to crosses, just to crosses on government property. But the cross was now on private land; ergo, ran the government’s argument, no standing.
To be fair, Ms. Kagan did not invent this sophistic argument; she inherited it from the Bush administration. But she pursued it with enthusiasm. I thought it was preposterous, and so did the court, to claim that the man who had successfully brought the case had lost his right to dispute Congress’s end run around his lower court victory.
Only Justices Antonin Scalia and Clarence Thomas agreed with Ms. Kagan’s argument, and Justice Anthony Kennedy’s plurality opinion dispatched it in a few sentences. I would like to know what Solicitor General Kagan really thought of that argument. The answer matters because, although that case is over and done with, the question of whether to foreclose access to court for citizens seeking to vindicate their rights is very much alive and is almost certain to be a continuing pressure point within the Roberts court.