Jacksonville, AL.   There are many reasons to wonder about the wisdom of confirming Elena Kagan to be associate justice of the Supreme Court.  She is going to sail through the Senate, but there are still reasons to wonder.  Is her rise to power based on quality, Affirmative Action, or both?  (Sadly, suspicion of unfair and undeserved advancement taints both the talented and the less-so, when it comes to AA.)  There are legitimate concerns behind this question, ranging from allegations of scholarly publication weaknesses to the politics of sexual orientation.

Another reason to be skeptical of her fitness for the position is her three-year membership on a Goldman Sachs research advisory council.  It was probably an easy way to make money and pad her vita—in some ways inconsequential since she was presumably one of many advisors and had no management responsibilities.  Still, her affiliation with Wall Street does suggest that she is no populist.  That is par for the course when it comes to the Obama administration.

Even if Kagan is brilliant and well-qualified in every other way, a traditional conservative would vote against her on principle, since she undoubtedly embraces loose construction of the Constitution and legal protection for the destruction of babies in-utero, among other things.  But what strikes me most about Kagan’s nomination is the typically phony way Washington and the mainstream media are packaging the event.  In powerspeak, up is down and elite is populist.

In the past week, I’ve read two news stories about Kagan in my local paper that featured absurd language.  The first was an AP story by Ben Feller on May 10.  The second was an AP story by Julie Hirschfeld Davis on May 12.

The second story quotes Harry Reid as saying Kagan “has fresh ideas” because she’s been “out in the real world recently.”  Reid is trying to turn a negative into a positive. Kagan’s lack of judicial experience means she has been doing other things instead of being cloistered among black robes.  But are the other things she’s been doing part of “the real world”?  For the past decade, she has been professor and then dean of Harvard Law School, followed by a year as U.S. solicitor general.  That’s pretty rarefied living.  In the ‘90s, she was a White House counsel and policy advisor.  Is there anything “fresh” about a retread from the corrupt and sleazy Clinton years?

The first story reports, “The president has grown vocal in his concern that the conservative-tilting court is giving too little voice to average people.”  Obama—he of the famed analysis regarding bitterness and clinging—has now condescended to express a tender regard for the vox populi.  In between his policy talks with Bernanke, Geithner, and Blankfein; his strategy sessions with Chicago machine cogs; and his social visits with the Beverly Hills and Martha’s Vineyard set.  Somehow he finds time to worry about the little guys and gals and then express that worry while the press dutifully notes the expression.

We are told that Kagan is a manifestation of Obama’s concern that the common people are not being heard by the Supreme Court.  So he appoints a person who attended an exclusive high school, then Princeton, then Oxford, and then Harvard.  Just the sort of person who is most likely to be in touch with the struggles and aspirations, the stances and aims of We the People.  Ain’t democracy grand?

Kagan is a lawyer.  Only 0.4% of all Americans are lawyers.  Her current salary is over $150,000 per year.  For Americans today, the median annual income for individuals age 25+ is $40,000.  You can argue that her distinguished educational pedigree entitles her to a high income, but it nonetheless places her far above most Americans.

Socioeconomic class is only one disconnect between rhetoric and reality when it comes to the Kagan selection.  If she is lesbian, as rumor has it, then she is definitely not average.  If she is not lesbian, she is very unusual as a 50 year old woman who has never been married.  She has no children, which is also unusual for a woman her age.

Each of these traits by itself means little.  There are tens of thousands of graduates from prestigious, if overrated, universities.  Not every woman is able to have children.  Added together, however, they do not depict someone who can relate to “average people” or vice versa.  Quite the opposite.  When you look at the aggregate effect of <1% + <1% + <1%, you end up with a nominee who is decidedly non-average.  How can someone so atypical be a voice for typical Americans?

If Kagan is seated, it will mean that four of the nine justices were raised in New York City.  New York is easily the largest city in the country but it still represents a mere 3% of America (8.5 million ÷ 309.3 million).  Where is the diversity?  Where is the multiculturalism?  As usual, it is highly selective and even the exceptions are elite-oriented.  If Kagan is confirmed, the court will be populated by three Jews and six Roman Catholics.  Zero Protestants.  Half of America is Protestant.

Obviously, the word Jew is ambiguous, since many modern American Jews have the ethnicity while rejecting the traditional religion, being atheists or the next-worst thing (Reform).  So you have Jewishness, in terms of bloodline, and Judaism, in terms of theology.  2% of Americans are Jewish.  1% of America identifies with Judaism.  3.5% of America is pentecostal, but I don’t expect any glossolalians to be on the High Court anytime soon.  We’re not quite at the point where we have religious equality in our fair land.  When, once again, a Protestant is appointed to the Court, s/he will more likely be Episcopalian than Assemblies of God.  Retiring Justice Stevens is the only Protestant right now yet his denomination is unknown, leading me to think that his religion is rather nominal—more of a cultural “Christian” than anything else.

I don’t care that Kagan is Jewish.  My favorite senator, singer, and savior are Jews. Feingold, Dylan, and Jesus.  (My only, not favorite, Savior.)  Although I understand homosexuality to be deficient on numerous grounds, I wouldn’t oppose Kagan for that reason, if she does privately fall into that category.  Five-term Senator David Walsh (D-MA) was one of the best members of the upper legislative chamber during the first half of the 20th century.  Apparently, he was also homosexual.  Some of my favorite writers are self-identified homosexuals who are undeniably talented and insightful (e.g., Gore Vidal, Andrea Dworkin, Amy Ray, Emily Saliers, Justin Raimondo).  “Some of my . . .” —yes, a cliché; yes, relevant.

When it comes to the Supreme Court, I don’t care about ethnicity, religion, or sexuality per se.  What bugs me is hypocrisy, phoniness, and the age-old problem of aristocracy.  If only the few really were the best!  But they aren’t.  So we’re left with the worst of all possible worlds: Rule by the incompetent and wicked few.

Many of my favorite candidates over the years have Ivy League schooling.  Like Kagan, Feingold is an alum of Oxford and Harvard Law.  Nader went to Princeton and Harvard Law.  Jerry Brown graduated from Yale Law.  Heck, even the libertarian rabble rouser Tom Woods has degrees from Harvard and Columbia.  It’s not about some know-nothing or sour-grapes guilt by educational association.  It’s about the cumulative effect of a Supreme Court justice’s life experiences moving her further and further away from the people she is governing.  Through an unelected lifetime position.  While posing, or being posed, as someone who gives “voice to average people.”  This neither started nor will end with Elena Kagan of Prinoxvard.

Since the 1950s, liberal Democrats have been champions of the Supreme Court and lower federal courts partly because they have been seen as guarantors of the rights of minority groups.  There is, however, some question concerning the nature of the minority most often protected by the judiciary.  While often rendered in the name of downtrodden minorities, judicial decisions are made by a privileged minority—namely, the wealthy and powerful.  The Supreme Court has long been dominated by Ivy League graduates and corporate attorneys.

The “Father of the Constitution,” James Madison, was interested in protecting the rights of the nation’s wealthy minority, in guarding against oppression by the unpropertied majority (Federalist no. 10).  It could be argued that the Supreme Court has generally operated exactly as it was intended to operate.  It has kept democracy in check.  Since the 1930s, it has exemplified the dual nature of the welfare state: discreet, large subsidies for the wealthy and powerful; well-publicized, small subsidies for the poor and unpowerful.

Members of the Court have often handed down decisions which benefit lowly members of society, but rulings have rarely disturbed the infrastructure of state capitalism and they seem to emanate more from a sense of noblesse oblige or upper-class mores than from principled, constitutional interpretation.  For minority groups to place their destiny in such an arrangement seems disempowering, if not dangerous, depending as it does on the magnanimity of five remote individuals rather than on creating solidarity among themselves or good relations with their neighbors.  Unfortunately, liberal politicians and journalists are not interested in deeper questions concerning majority rule, minority rights, and federal judges.

This isn’t personal.  Elena Kagan may be a kind, decent, intelligent, and knowledgeable human being.  But I do not believe any of those traits account for her appointment by Barack Obama.  And I do not believe her confirmation will give average people any greater voice in the circle of power.  Knowingly or not, she is a representative of political correctness and corporate wealth.  Not justice.  Not democracy.

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  1. Kagan Should Not Be Confirmed

    Being a graduate from an Ivy League school is not a negative. The negative is that the Supreme Court is losing Educational Diversity amongst its members. A very simple example could be vanilla ice cream. Everyone likes vanilla ice cream. The problem arises when you limit your diet exclusively to vanilla ice cream. You get lots of calcium, but you lose out on all of the other needed vitamins and minerals to live a healthy productive life. The same can be said about losing the diversity of knowledge and diverse perspectives that people from other institutions can provide. The majority of the Supreme Court Judges should not be Ivy League graduates.

    I am of the opinion that Supreme Court decisions may be considered biased, due to their common Ivy League education, and they are engaging in discrimination, by limiting the Court to Ivy League Graduates.

    The following applies to Kagan, just as it did to Sotomajor.

    This editorial was created by 160 Associated Press readers under a Creative Commons Share-Alike Attribution License 3.0 using MixedInk’s collaborative writing tool. For more about how it was created, see here. It can be republished only if accompanied by this note.

    Obamas Appointment of Sotomayor Fails to Offer Educational Diversity to Court.

    Sotomayor does not offer true diversity to our Supreme Court. The potential power of Sotomayor’s diversity as a Latina Woman, from a disadvantaged background, loses its strength because her Yale Law degree does not offer educational diversity to the current mix of sitting Judges. Once she walked through the Gates of Princeton and then Yale Law School she became educated by the same Professors that have educated the majority of our current Supreme Court Justices, and our Presidents.

    Diversity in education is extremely important. We need to look for diversity in our ideas, and if our leaders are from the same educational background, they lose the original power of their ethnic and gender diversity. The ethnic and gender diversity many of our current leaders possess no longer brings a plethora of new ideas, only the same perspective they learned from their common Ivy League education. One example of the common education problem is that Yale has been heavily influenced by a former lecturer at Yale, Judge Frank, who developed the philosophy of Legal Realism. Frank argued that Judges should not only look at the original intent of the Constitution, but they should also bring in outside influences, including their own experiences in order to determine the law. This negative interpretation has influenced both Conservatives and Liberals graduating from Yale. It has been said that Legal Realism has infested Yale Law School and turned lawyers into political activists.

    A generation of appointees with either a Harvard or Yale background, has the potential to distort the proper interpretation of our Constitution. America needs to decentralize the power structure away from the Ivy League educated individual and gain from the knowledgeable and diverse perspectives that people from other institutions can provide. We should appoint Supreme Court Justices educated from amongst a wider group of Americas Universities.

    Harvard –

    Chief Justice John Roberts
    Anthony Kennedy
    Antonin Scalia
    Stephen Breyer
    Ruth Bader Ginsburg (Harvard, Columbia)


    Samuel Alito – Yale JD 1975
    David Souter
    Clarence Thomas – Yale JD 1974
    Sonia Sotomayor – Yale JD 1979

    Northwestern Law School.

    Justice John Paul Stevens

    The Presidents we have elected for the last twenty years, have themselves been Harvard or Yale educated. This has the potential to create an even more closed minded interpretation of our laws.

    Yale – Bush Sr. – 4 years
    Yale Law – Clinton – 8 years
    Yale – Bush, Jr. – 8 Years
    Harvard Law – Obama – 4 – 8 years

    When we consider that our Nation has potentially twenty – eight years of Presidential influence from these two Universities, as Americans, we should look long and hard at the influence Yale and Harvard have exerted on our nation’s policies. Barack Obama promised America Change, but he has continued the same discriminatory policy by appointing a Yale graduate over many qualified candidates that graduated from other top Colleges and Universities in America.

  2. Excellent contribution, Jeff.

    Since the 1950s, liberal Democrats have been champions of the Supreme Court and lower federal courts partly because they have been seen as guarantors of the rights of minority groups. There is, however, some question concerning the nature of the minority most often protected by the judiciary.

    Unfortunately, it’s a question that, as yet, and as you note, far too few of those of us on the left are asking. There are good reasons, occasionally, for making use of and therefore trusting in the power of an elite, undemocratic, interventionary institution, which is what the Supreme Court’s power of judicial review entails. I wouldn’t want to see Brown v. Board of Education challenged, for example. But such judicial interventions do little on their own to generate a basis for collective, local, democratic action, and in fact often hinder the development of exactly that. The fact that liberal groups of all sorts basically attached all their progressive hopes on the SC for decades has had the effect of making those hopes ever more extreme, contemptuous, and elitist. Now that the court, over the past decade, has started to turn its activism in more “conservative” direction, some liberals and leftists are waking up to the fact that they’ve made a poor bargain; that their demand for ever more “rights” hasn’t much helped create a public willing to sacrifice and compromise and work on behalf of such, and in the meantime their focus on the SC has only strengthened that institution. But, as with so many things, it may be too little, too late.

    As for Kagan herself, I can only say what I said before: the judicial meritocracy marches forward.

  3. Wouldn’t Amy Ray and Emily Saliers fall into under “musicians and composers” rather than “writers”?

  4. “since she undoubtedly embraces loose construction of the Constitution..”

    This simply is not true. In fact, Kagan’s master’s thesis, as pointed out by the Wall Street Journal, advocates a “strict constructionist” point of view that acts primarily on precedent. A copy of the thesis entitled “The Development and Erosion of the American Exclusionary Rule: A Study in Judicial Method” can be found here: http://judiciary.senate.gov/nominations/SupremeCourt/upload/ElenaKagan-OxfordThesis.pdf

    This assumption and others in this article say more about the author’s bias against a female justice nominated by a Democratic president than about the justice herself. There is little substance about Kagan’s actual work here.

  5. I agree with you, hjp, on the value of educational diversity.

    Thanks for the comment, RAF. More often than not, you and I are on the same page!

    JP, As I’ve gotten older, as my metabolism has slowed down, and as my habit of too much pasta and donut consumption produced its own aggegate effect, I’ve become less judgemental about surplus chins.

    Jude, I’m thinking of the Indigo Girls as lyricists (songwriters).

    Grammar, My criticism has nothing to do with the president’s party or the nominee’s gender. I don’t argue that women should not be on the court or that they are over-represented. I have no problem with Kagan being a woman or being an independent woman. Many of the worst Supreme Court justices have been chosen by Republican presidents. So you’re detecting non-existent bias.

    You may be right in saying I was wrong to assume that Kagan “undoubtedly embraces loose construction of the Constitution.” I hope you’re right. Thanks for the link to her Oxford thesis. Keep in mind, though, that strict construction of the Constitution is not the same as reliance on stare decisis. Relying on precedent in the context of 200 years of loose construction often perpetuates the problem of deviation from the letter and intent of the Constitution. Now that I’ve read part of the intro of Kagan’s thesis, I can see that there is some hope that she will be a more literal interpreter than is common for modern liberals.

    For example, Kagan wrote, “The Supreme Court, however, had consistently failed to provide the exclusionary rule with a principled undertaking. . . . The exclusionary rule needed the support of a coherent, logical, and specifically constitutional rationale. . . . The Burger Court quickly demonstrated how vulnerable ill-supported decisions can be to judicial modification. . . . The Burger Court could not have weakened the exclusionary rule so easily had its predecessor buttressed the rule with a well reasoned and constitutionally-based rationale. . . . U.S. Supreme Court Justices live in the knowledge that they have the authority either to command or to block great social, political, and economic change. At times, the temptation to wield this power becomes irresistable. The Justices, at such times, will attempt to steer the law in order to achieve certain ends and advance certain values. . . . By overlooking the centrality of reason and principle in the judicial process, the Justices are defeating their own purposes. The slighting of means in the haste to achieve ends is counterproductive. It increases the probability that the Court’s rulings will have only a temporary effect.” (pp. 4-6)

    On the one hand, Kagan’s emphasis on constitutional reasoning is refreshing and could be coming from the principle of strict constitutionalism. On the other hand, she may just be arguing from a pragmatic perspective, saying that when something desirable is being handed down by the Court (e.g., exclusionary doctrine), its permanence is best established by having it rest on a solid foundation, including explicit constituional justification. If it’s the second point, that’s not strict construction at all. Even John Marshall cited article and clause in justifying his rulings, but he did so with loose construction of those passages.

    So, yes, Kagan is emphasizing explicit grounding in the Constitution, which is good, but I can’t tell whether she’s more concerned about fidelity to the Constitution or about ensuring the long-term viability of favorite rulings. What’s her real concern? That justices honor the clearly-delineated, mutually-agreed-upon ground rules (social contract) or that justices are smart in their means so they don’t unintentionally undo their desired ends?

    I’ll admit my assumption was too glib. We have some reason to hope for something better. But I’m still skeptical that Obama chose a strict constructionist. If an ex-Harvard Law dean holds this perspective, Obama has unwittingly found a needle in a haystack. The word that I keep reading about Kagan is “pragmatic.” That does not bode well, even if she was a strict constructionist back in her grad school days. Pragmatism is linked to looseness, not strictness.

  6. Jeff,

    I like the post, and your measured, irenic tone. At one point or another, however, don’t we have to say some harder things?

    Anyone who really believes that Mr. Obama would appoint a Supreme Court Justice who does not stand for unrestricted women’s “choice” and who does believe that the Constitution imposes real and definable limits on governmental authority, please put your hands up. Does anybody really think that what her MA thesis said means anything after years of winding through the silky wheat of liberal law schools and the Clinton and Obama administrations? I’m not being cynical about this, nor smart-alecky. I just want to know who could believe such things and keep a straight face.

    She is not qualified to sit on the Court, never having held a real job outside elite academia and national government. Has she ever argued a case?

    And I’m not at all afraid to say it: If she is lesbian, it’s a disqualifier. The left and “main-stream” media has gone bonkers over what they claim is an enormous outcry from the right about this issue–which I haven’t heard, and don’t think anybody outside the nutty Left has, either. “Foul!” they cry, “it’s none of our business,” they cry, etc. etc. Has the Left made a peep about Rep. Souder resigning over a “private” matter? When one’s sexuality defines them, it may not be a disqualifier for art, business, practicing law or any other profession, but it is in matters of high public trust. As are many other aspects of character that may define and predict how one may act in matters of high public trust.

    I’m much more concerned that she is a judicial lightweight who has never been tested on any serious level, including academic. In fact, it appears that she simply swept under the academic rug some rather serious plagiarism charges against prominent professors when she was in a position to take hard action.

    I also agree, Jeff, that she will probably sail right on through, and it will have absolutely to do with anything relating to merit. If the Republicans could somehow stall it until after the November elections, this nomination would be toast.

  7. My criticism has nothing to do with the president’s party or the nominee’s gender. I don’t argue that women should not be on the court or that they are over-represented. I have no problem with Kagan being a woman or being an independent woman. Many of the worst Supreme Court justices have been chosen by Republican presidents. So you’re detecting non-existent bias.

    I respect that there is no intentional bias here, but I do feel that there is a de facto bias. In other words, I believe that it would be near impossible for the right to be satisfied with almost any choice that Obama made because Obama is liberal and “Unfortunately, liberal politicians and journalists are not interested in deeper questions concerning majority rule, minority rights, and federal judges.” Kagan is an excellent demonstration of this point because she offers no decisions to dissect and therefore, we are left to our speculations. Speculations, that may well be unfounded, whether they be about her political positions or her sexuality.

    My final point would be in response to the criticism that Kagan is not of the people. First, Kagan is a woman and women, while they represent over half the population, only represent 2/9s of the court. I find it interesting that everything from her sexuality to her religion is analyzed here to determine if she is of the majority or the minority except for her gender. Also, the position of Supreme Court Justice has never been one of the populist. Why should this one be?

  8. Personally strict construction, in a country over 200 years old, seems only to solve half the problems with at least a certain amount of originalism inserted.

  9. Damn I meant without not with. I’m a bit split of such things. I love the common law which was based on precedents which may be strict but not always original, I do favour minority rule sometimes but not of a liberal judiciary and do think a written constitution like the US’ is rather meaningless if it is not constructed strictly and mostly in an originalist fashion.

  10. Right with you, Wessexman. I wrote my senior thesis on the common law; I love it as well.

  11. I don’t favor minority rule, but a constitution, if it is a constitution, must be enforceable as a limitation on the powers of not only the executive, but also the legislature. A Supreme Court with powers to nullify unconstitutional acts should not affirmatively enact new law, but it should be a brake on the erosion of individual liberty. The best of the Warren court’s rulings did exactly that.

    Kagan is of course correct that if justices are in haste to produce what they consider “social justice,” without looking carefully at whether the constitution clearly mandates the result they desire, any ruling which emerges will be vulnerable to tampering in the future — as it should be. Plessy v. Ferguson is a classic example of expounding a constitution through the lens of sociological assumption (since we assume people are by nature racist, we are powerless to apply the literal text of a constitutional amendment and require that it be observed). It was not exactly overturned even by Brown v. Board of Education, but it is of note that in deciding Brown, the court decided not to rule at all unless the decision was unanimous — a mere 5-4 simply wouldn’t have carried sufficient weight to be effective. Today’s judicial squabbles often ignore such caution.

    I too fear that Kagan will be too willing to allow the legislative and executive branches freedom to stretch their delegated powers beyond what was really delegated. I take arguments concerning limits to federal authority with a grain of salt, particularly in economic matters: the resistance of the court in the early 1930s to measures such as a minimum wage law and labor protective laws belies the fact that our economy was then already national in scope, and there wasn’t much that could be accomplished to protect citizens on a state by state level from rapacious corporations.

    However, I take a dim view of expanding the authority to “regulate interstate commerce” into criminal and sociological legislation. One of the Rehnquist court’s finest moments was striking down a federal law against felons carrying a gun within 1000 feet of a school, not because the practice shouldn’t be regulated — every state had such laws on its books — but because it was none of the business of congress to be passing such laws. Ditto for Boy Scouts of America v. Dale, where Scalia forthrightly defended freedom of association, while Justice Stevens indulged in a horrifying examination of whether and how opposition to homosexuality were part of the Boy Scouts’ “expressive message.” Who cares? Its none of the government’s business, not even the Supreme Court’s. Citizens who want boy scouting with inclusion of homosexuals have every right to organize their own version of the boy scouts.

    Personally I would have preferred Sidney Thomas, the 9th Circuit Appeals Court judge from Montana. Nothing wrong with having three women on the court, but someone from WAY outside the beltway who would be firmly supportive of individual liberties had much to recommend him.

    Since “legal protection for the destruction of babies in utero” has been mentioned, I will note again that Roe v. Wade is an excellent construct for limitations on the coercive power of the state. Within that framework, there is nothing wrong with individuals associating to educate and advocate that the individual choice protected from state interference should be made on moral grounds in a particular manner, e.g., by carrying the pregnancy to term. Just because it’s legal doesn’t mean it’s right, although there are times when I believe a decision to abort is justifiable. There is good reason to move the boundary between individual choice and state intervention to protect a distinct individual life back from the notion of “viability” which was medically sound in 1973, by a few weeks. Capability of metabolic independence of the mother, and self-aware cognitive capacity, appear somewhat earlier than what was once observed as “quickening.”

  12. I’m not an expert on it but Roe Vs Wade seems to me a textbook example of the evils of judicial activism. It seems to turn the constitution into Jefferson’s mere guidelines and Wax to be remade by the federal judiciary however much they feel like. Now as I said I’m no expert but I believe it basically took a few phrases like a right to happiness and privacy to trample over state’s right and redraw the constitution, in a way the framer’s never envisaged. On that sort of logic the constitution is almost useless and state’s rights are basically forfeit. It seems to me an abysmal decision, something worry of a court in Brussels or Strasbourg and not Washington.

    I’d argue it is not the judiciary’s job to stand up for individual liberty but to interpret the constitution in a strict and original fashion for the most part. It is up the framers and amenders to worry about how the constitution enshrines individual liberty. As a traditionalist I also consider individual liberty only one of the important concerns of society, state and man but perhaps that is another topic.

    Btw When I say I favour minority rule, I mean I support a balanced gov’t with aristocratic, democratic and monarchic elements rather than an oligarchy or anything like that.

  13. Wessexman our gracious host has made his views on abortion very clear, and has also acknowledged the logic (but not the morality) of mine in the past, so I don’t want to respond at length — albeit your Anglo-Saxon erudition and color reversal of our dragon makes my Cymraeg blood boil (smile emoticon here).

    I’m not greatly concerned about state’s rights when it comes to the right to trample on individual liberty. I am more than pleased that the Fourteenth Amendment has been construed to apply most of the Bill of Rights to the states. When it comes to barriers against government intervention in personal decisions, there is very little I want the feds kept out of, that I would trust the state bureaucracies to have a free hand with. The constitution reserves “to the states OR TO THE PEOPLE” all powers not granted TO the federal government, nor prohibited BY the Constitution to the federal and/or state governments.

    Where I see both moral integrity and constitutional foundation for “states’ rights” is to restrain the exercise of federal police powers if the people of a state vote to accept something as legal. (Medical marijuana laws are a good example — although, as long as a fair number of states make it illegal, the feds could legitimately confine the entire commerce within the boundaries of states which accept it as legal.)

    Justice Thomas is particularly incoherent when he writes that “a state may permit abortion” but is not “required” to do so. A state is neither required nor permitted to commit any positive act by Roe v. Wade. It is simply barred from interfering. Any act is legal, in the absence of positive law making it a crime. The states have broad police powers, but not infinitely elastic ones. Roe v. Wade restrains the exercise of those police powers. That is a critically important role for the federal, as well as state courts, within the framework of the federal and state constitutions.

    There is only one sound argument against Roe v. Wade. The majority opinion in that very case acknowledged that if a fetus is legally recognized as a person from the moment of conception, then the plaintiff (Roe)’s case fails, because such a person would indeed be entitled to equal protection of the laws, and to not be deprived of life, liberty or property without due process of law. The court found no legal precedent that a fetus is thus recognized as a person. The foundation of the pro-life movement is the assertion that it should be, and a demand for whatever legal measure or accommodation is necessary to so establish.

    I don’t agree with that goal, but it has the integrity of a sound, consistent argument, and if accepted, would settle the question legally. Arguments about “judicial activism” and “states’ rights” ring very hollow by comparison.

  14. Surely the fact it was egregious judicial activism counts for something? You may call arguments about judicial activism hollow but that doesn’t make them so. For judges to make law by reinterpreting constitutional clauses and laws in ways not originally envisaged and what is not in the strict wording of the clause or law is to undermine not just state rights but the separation of powers, the rule of law and the constitution itself. It is to make the constitution mere guidelines for the judiciary to reinterpret as they like. You have to separate means from ends somewhat in these discussions. You may like legal abortion and like the outcome of this decision but that does not mean one should necessarily accept how it came about. One must think about what are the complete consequences of this sort of judicial activism and remember that it could easily be used against what you support rather than in favour of it.

    The argument, from a conservative, decentralist position at least and one of a strict and original constitional contruction, seems pretty clear cut when it comes to Roe Vs. Wade. It is hard to see how anyone holding these positions could have much time for it. It is truly something worthy of an EU court or the ECHR.

    Your argument about state’s rights is simply almost the exact opposite of what the Porcher mentally seems to be. It is a centralist argument which attacks the importance of intermediate levels of gov’t, or seems to do to me. I have no wish to go into that, this site is full of arguments in favour of a measure of decentralism and the importance of intermediate levels of gov’t with real autonomy and authority and indeed arguments against centralism.

  15. I do indeed differ from many, perhaps all, of the contributors to Front Porch Republic on the matter of judicial activism and state’s rights. I recognize that a state government can be just as great a source of tyranny as the federal government, and accordingly, the authority of the state must be restrained to protect individual liberty. I agree that a judge should have a sound constitutional foundation for ruling an act of a state, or of another branch of the federal government, to be null and void; they must clearly establish that the act in question exceeds constitutionally granted powers, or breaches a constitutional prohibition.

    There is an unfortunate cultural atmosphere in America that “If I want it, its unconstitutional not to give it to me.” An extreme example was a small demonstration of devoted adherents of Mafia don John Gotti outside a federal courthouse in Manhattan, one proclaiming “He has a constitutional right to be not guilty!” A more pervasive example is the persistent claim that individuals who prefer the sexual companionship of their own sex are being deprived of “equal protection of the laws” if they are denied a marriage license. The decisions, so far generally at the state level, which have accepted such claims are horribly reasoned. Marriage is about a specific relationship between a man and a woman. Any man or woman entering into marriage can obtain a marriage license. A man or woman who wants to enter into something else doesn’t have an “equal protection” right to have THEIR preferred (and distinct) choice licensed.

    But, there is also a reflexive tendency for anyone who WANTS government to exercise a power it has been deprived of by judicial ruling to scream “judicial activism.” Objections to Brown v. Board of Education were a classic example. So are objections to Roe v. Wade.

    Does the federal constitution state “The right to terminate a pregnancy shall not be infringed by the federal government or any state”? No, it does not. But every American citizen has a strong if not always well informed understanding that the federal government, and to some extent the state governments, are prohibited from intervening in our private lives. There is a well established line of cases concerning a “right to privacy,” developed from more specific rights contained in the Bill of Rights and the 14th Amendment. That right was quite popular among conservatives until it was applied to an individual woman’s decision to abort her pregnancy.

    So, I do not consider Roe v. Wade an egregious act of judicial activism. I consider it a sound, conservative application of well established law. It did not IMPOSE anything on any state or person. It merely RESTRAINED the exercise of the police power of the states. That is the essence of how the courts should protect individual liberty from encroachment by the exercise of government power.

    I would be much more concerned about a judge imposing a positive duty on a state. Generally, a state may adopt any positive law it chooses, unless than contravenes a constitutional guarantee. A state has no duty to adopt any particular positive law, unless citizens of the state vote for it. The distinction is between restraining police powers, a valid constitutional exercise for the courts, and imposing legal duties or constructs, such as ordering the state to license as marriage something the state has never recognized as a marriage.

  16. Grammar if Kagan said she is a strict constructionist then she is a liar as her understanding of the 1st amendment is made up out of whole cloth. She has said:

    ““Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”

    that is just made up, there is nothing in the original wording of the 1st amendment about balancing in societies needs, but rather the 1st amendment functions as an absolute rule protecting individual speech acts from state power. What part of “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press,” does she fail to understand? It doesn’t say Congress may make laws restricting speech based on societies needs, it says Congress hall make no law, full stop.

    Note that I have no axe to grind here BTW as I consider my self on the Green party supporting activist left, but as per usual I find more to agree with among localist oriented paleo-cons than corporatist imperialist supporting (when their party is power only) Democratic party supporters.

  17. Matt, you are absolutely correct. Thank you for pointing this out. After confirming that the words you quote are indeed her own formal submission to the Supreme Court, a matter of public record in so many words, I have written to both of my senators asking them to question her closely on this point, and preferably to vote against her confirmation.

    I believe Justice Hugo Black understood the meaning of the First Amendment quite clearly when he said that “Congress shall pass no law” means that “Congress shall pass NO LAW.” It does not mean “Congress shall pass no law, unless Congress and the Supreme Court decide that on balance, the government’s interest in having the law passed is greater than the people’s interest in not having the law passed.”

    The Constitution is primarily a matter of jurisdiction. Congress has jurisdiction, or it does not. A state has the police power to act, or it does not. (Some restraints, e.g. on ex post facto laws, were imposed on states by the original text, not by the Bill of Rights or the Fourteenth Amendment). If a body has jurisdiction and authority to act, then how it chooses to exercise that authority is none of the judiciary’s business.

    (As it happens, BOTH of my state’s senators sit on the Judiciary Committee — not entirely fair perhaps, but it is so. Russ Feingold may well be willing to push this point. Herb Kohl is more likely to vote the party line — after all, he made some very dubious statements when the Supreme Court struck down a federal law establishing criminal penalties for carrying a gun near a school, in language expressing a very similar philosophy to Kagan’s assertion, that you highlighted. Kohl said it was a terrible decision, because guns carried near schools are a serious problem. The Court didn’t say it wasn’t, nor did it say that states may not pass their own criminal laws — which every state had done. The Court said it was not within the jurisdiction of Congress to pass such laws at all.

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