The latest document making waves concerns a speech she gave in 2003 to a group of graduates from Princeton. Among the papers turned over to the Senate Judiciary Committee for consideration are some handwritten notes Kagan made in preparation for the speech. The notes can be found here on page 83. Among other things the notes suggest that Kagan believes Congress should have broad authority when acting in areas in which the Constitution specifically grants power to the legislative branch. She specifically mentions section 5 of the 14 Amendment, which says ''Congress shall have power to enforce, by appropriate legislation, the provisions of this article.'' Her conclusion is that the Court should defer to Congress when Congress takes action to enforce 14th Amendment rights.
This position suggests that Kagan would have dissented in City of Boerne v. Flores, 521 U.S. 507 (1997), in which the Court held that the Court, and not Congress, had the authority to define the substantive rights guaranteed in the 14th Amendment. The case involved the Religious Freedom Restoration Act (RFRA) in which Congress tried to impose a strict scrutiny test on the Court when considering state laws that interfered with religious freedom, after the Court ruled that state drug laws were broadly applicable and not targeted at Native American religious views after two Native Americans lost their jobs when drugs tests revealed mescaline in their system (Employment Division v. Smith, 494 U.S. 872). RFRA was ruled unconstitutional as it applied to state laws but remains in effect when applied to federal laws.
Kagan's position should make her more appealing to judicial conservatives who worry about judicial activism. However it's worth noting that the speech was given in the context of criticizing the Court's decision in Bush v Gore, the Supreme Court case that ended the recount of ballots in Florida in the 2000 presidential election. Popular with conservatives and positively reviled by liberals, for obvious reasons, Kagan's critics may dismiss her comments in this particular speech as being politically motivated.
