Supremes rule against Kagan, whose score is 3 wins, 2 losses

Elena Kagan’s Supreme Court confirmation hearings haven’t even begun, and the score is already 1-0 against her.

The Supreme Court on Monday morning ruled against Ms. Kagan in a case she had argued as solicitor general when it decided that a quasi government agency that audits public companies is unconstitutional. The board’s members are appointed and removed by the Securities and Exchange Commission, and not the president – a violation of Article II of the Constitution, which vests executive power in the president, the court ruled.

The board, called the Public Company Accounting Oversight Board, was created under the 2002 law known as Sarbanes-Oxley. Ms. Kagan, arguing on behalf of the Obama administration, had made the case that the president appoints and can remove S.E.C. commissioners, and thus, by extension, has control over the accounting board.

The White House notes that Ms. Kagan’s overall Supreme Court record is 3-2. That is, three wins and two losses in the five cases she has argued. (The other loss was in the Citizens United case, in which the court lifted limits on corporate spending to influence elections.)

Monday’s ruling is a narrow one, however, and experts anticipate Congress will simply amend the Sarbanes-Oxley Act to allow the accounting board to remain in existence.