During the 1980s and 1990s, confirmation hearings for Supreme Court nominees focused to a considerable degree on the Roe v. Wade and the Court’s other decisions relating to constitutional limitations no state laws restriction the availability of abortion. Democrats pressed nominees to express support for Roe and its progeny; Republicans pressed for expressions of skepticism. The nominees had to chart a difficult course between these demands.
These days, Roe makes only cameo appearances. The focus has shifted to the Second Amendment cases, Heller and McDonald.
The key difference is that virtually all of the weight is on one side: looking for expressions of support for the Court’s decisions in favor of the proponents of gun rights.
Kagan was just pressed by Senator Grassley on whether she agreed with Heller and McDonald “personally.” She said she personally viewed them as “settled law” with “all the weight any precedent of the Court has” and that she will “follow stare decisis [the legal principal requiring courts to respect precedent] with respect to them as with any case.”
And Grassley even brought up one of Kagan’s memos from her clerkship with Justice Marshall in which she recommended against granting review in an early case raising a Second Amendment claim saying she was “not sympathetic.” Did this mean that she was not sympathetic with the claim or the claimants? No, said Kagan, just that the law at that time provided no basis for it.
Kagan is walking a fine line here. She does not want to indicate opposition to the Second Amendment decisions, but she also does not want to say anything that would prejudge the argument in some subsequent case — perhaps 10 or 20 years from now — that they should be overruled (any more than she could prejudge such an argument on Roe or any other case). So far, she seems to have accomplished that goal.
