Kagan on the Wisconsin Supreme Court's "impasse"

Or: But isn't Gableman an "original intent" kinda guy?

COBURN: Is the [United States Supreme Court's case law] precedent more important than original intent?

KAGAN: Senator Coburn, let me give you an example. I'm not sure if it was an example I used before or not. But in the First Amendment context, which is a context I've written about a good deal, it's fairly clear that the First Amendment doctrine that's been established over [the last] 100 years departs significantly from the original intent of the Framers. One example is that I think that the Framers would never have dreamed that the First Amendment would in any way protect people against libel suits, that the First Amendment had anything to do with libel. So when the [Supreme] Court said in New York Times v. Sullivan that a public figure could not sue the New York Times and claim damages for libel without meeting a very high bar — without meeting the so-called actual malice standard — I think that that was something that the Framers would not have understood.

COBURN: [suddenly taken aback] Why would you think they wouldn't have understood that? I mean, they had print back then. I mean, we didn't start that early, in terms of the formation of our country.

[Kagan was saying that libel wasn't part of the Framers' "original" understanding in drafting the First Amendment; she wasn't saying that they wouldn't have understood the arguments which were presented and decided 173 years hence in NY Times v. Sullivan. Jeez, Coburn, she's talking about Alexander Hamilton and James Madison.]

KAGAN: I think that the historical evidence is very clear that the Framers didn't think that the First Amendment at all interfered with libel suits. Now, over time, as courts have applied the First Amendment to different contexts, to different circumstances, have seen different factual problems, have had to consider different cases, I think that the Court sensibly thought that the principles that are embodied in the First Amendment could not be protected unless the decision in New York Times v. Sullivan was issued.