So what does this mean for the video game industry, and why am I reporting this on a video game site? Considering the fact that Supreme Court judges are lifetime appointments, it means a lot considering some of her past positions. Just by being a member of the liberal bloc, she joins a group that historically votes in favour of government regulation. Furthermore, she has effectively argued for government censorship in the past. In the first round of Citizen's United v. Federal Election Commission, her deputy argued that there was nothing in the First Amendment of the Constitution that prevented the government from banning books, a view Kagan backed up in the second round of arguments. As Scott Horton notes at Harpers, Kagan "pays lip service to the limitations on executive authority contained in the Constitution, but she’s generally in the thrall of executive power."
There is a strong reason to believe, based on Kagan's past arguments and academic writings, that she feels that the government has limited rights to censor so long as it is for what is deemed a greater good. This is important to consider for an industry such as ours that is still fighting so much fear, uncertainty and doubt from the general population. The government is consistently trying to regulate an industry that currently polices itself via the ESRB. Should a case of censorship of the video game industry make it to the Supreme Court, someone like Kagan - who's views on the First Amendment are curious at best - could vote for higher regulations, effectively destroying the ESRB. Due to the disposable income that consumers in the United States have, other regions could be forced to fall in line as well, especially if the United States uses it's clout in trade agreements.
Elena Kagan is a hard nominee to read due to her limited experience in arguing legal cases. But if her academic record is anything to consider, there are warning flags for the games industry.