I'm more concerned about how that article was written. There are no real details and the article is even internally inconsistent.
Here's an example:
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As early as 1992 Kagan describes a theory of the First Amendment involving “viewpoint based government regulation” -- the classic type of speech the First Amendment guards against -- which might be allowed when racist or sexist speech is involved; especially she says if a more “advantageous change in the Court’s membership” were to occur. Conversely, under her theory if the speakers subject to her lower threshold for speech regulation manage to get a subsidy from the federal purse, then she claims the government should have less ability to regulate their speech.
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At first the writer says she's describing a theory - then, later on he writes "under HER theory". Heck *I* can 'describe' many theories I don't agree with. So what was the story? Was this her theory or was she just talking about *a* theory?
Next he writes:
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Next, there is her 1995 University of California, Davis law review article on speech codes in which she asserts one way to defend a Stanford University speech code would be to consider it “a ban on the subcategory of fighting words that must pose the dangers associated with fighting words generally.” This has strong anti-First Amendment implications. Logically, Congress could pass an anti-discrimination statute that revokes the tax-exempt status of churches that advocate traditional marriage since many Americans find this position to be offensive.
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Again, was this a mental exercise or was this her honest belief? How many times in school were any of us asked to debate and take a particular side?
Then he goes on with:
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Finally there is a 1996 Chicago Law review article on the First Amendment in which Kagan theorizes that the Courts -- instead of focusing on the First Amendment’s goal of ensuring that individual expression and the marketplace of ideas is encouraged -- should focus on the government’s motives in adopting regulations that impact speech.
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Why not examine governmnet's motives in restricting free speech? I mean, if someone says "You shouldn't say that", isn't your first reaction to pipe up with "WHY?"
Then there's the bit about when she was Solicitor General and the flap over the anti-Hillary movie and Federal Election laws. Correct me if I'm wrong (and here I certainly could be) but didn't she get her marching orders on that from the White House?
It would *appear* to me that the writer is making the mistake of thinking that everything someone writes at work is representative of their personal beliefs.
If she had said something like "I wish we could restrict Free Speech more" in the context of a meeting or social gathering, I would be a lot more worried. Perhaps a contributing fact to this is that opinion columnists are allowed to write about what they believe in - THAT is their job (or at least an aspect of it). If someone wanted to find out what *I* might do in the position of a Supreme Court Justice, they should look at my postings online, talk to my friends, etc. What I've had to do in my career doesn't necessarily reflect my personal beliefs (especially when I was working in the mutual fund industry)