Elena Kagan, President Obama’s pick for the U.S. Supreme Court, has never been a judge. Therefore, we don’t know for certain anything about her views on ballot access.

But, she clerked for Judge Abner Mikva, and also U.S. Supreme Court Justice Thurgood Marshall. Both were very good judges who cared about justice for minor parties and independent candidates. Judge Mikva was on the U.S. Court of Appeals, D.C. Circuit. The D.C. Circuit never hears ballot access cases, but it does hear cases on presidential debates. In 1991, Mikva cast a very favorable vote in Fulani v Brady, a case concerning the Commission on Presidential Debates. Fulani lost the case by a 2-1 vote, but Mikva dissented. The plaintiff was Lenora Fulani of the New Alliance Party. She had been that party’s presidential nominee in 1988, the year she filed the lawsuit. She had been on the ballot in all 50 states, yet the Commission on Presidential Debates refused to include her in the general election presidential debates. She sued the U.S. government, arguing that the Commission should not enjoy tax-exempt status, since it was not neutral, but was instead making a very large boost for the two candidates who were invited into the debate, Michael Dukakis and George H. W. Bush.

Justice Thurgood Marshall cast votes favorable to ballot access in almost every ballot access case he heard. Kagan was his law clerk in the 1987-1988 term.

Scotusblog has an article about Kagan, but of course it doesn’t discuss ballot access or any other election law issue except campaign finance. Kagan has been the Solicitor General, so her job required her to defend the McCain-Feingold law last year.