Kagan's Thesis Endorsed Judicial Activism

Everyone had hoped that with a complete disclosure of Elena Kagan’s writings that we would have a greater understanding of her judicial philosophy and rest assured that her political activities would not be transferred to her role as a Supreme Court justice. Unfortunately, uncovering her positions on the role of the judiciary has only confirmed previous suspicions that she endorses the use of the judiciary as a mechanism to enact her social beliefs.

In her thesis, written during her tenure at Oxford University, she believes that the judiciary must be a mechanism of social change. Oddly, she also believes that the power and ability that comes with sitting on a court can be corrupting.

Kagan wrote: “U.S. Supreme Court justices live in the knowledge that they have the authority to command or to block great social, political and economic change… At times, the temptation to wield this power becomes irresistible. The justices, at such times, will attempt to steer the law in order to achieve certain ends and advance certain values. In following this path, the justices are likely to forget both that they are judges and that their court is a court.”

It’s curious then, that she would also argue that courts have a responsibility to look beyond the facts of a case and rule based upon prejudices, ethical biases, and social desires.

In the same thesis, as cautioning judges not to fall victim to the temptation to enact personal predispositions, she also argues that ruling based on social ends is perfectly acceptable. Kagan wrote: “Judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid.”

It is ideologically inconsistent for Kagan to, on one hand, chide judges for exceeding the bounds of their role, but on the other believe that certain social ends are worthy of breaking the limits of judicial restraint.

Kagan’s thesis raises more questions than it answers. What does Elena Kagan truly believe; that judges need to be cognizant of their role and understand the constitutional purview of the courts, or does she believe that judges are empowered to decide cases based upon what they view to be virtuous and noble social ends?

Kagan’s views today don’t seem overly divorced from her views when she was a student at Oxford. She has failed to reject the “empathy standard” as a criterion in deciding cases, she has failed to reject that judges are empowered to look beyond the law and Constitution in deciding cases, and she has failed to provide a coherent judicial philosophy that illuminates how she will rule as a Supreme Court Justice.

It is quite simply too risky to put someone on the Supreme Court who has had this kind of inconsistency in her judicial philosophy. Perhaps she would, as a justice, adhere to her own advice and recognize herself as a judge and not a legislator. Or, Ms. Kagan could rule based upon her personal values.

If our court system is to be above party or interest, judges cannot find it acceptable to mold and steer the law to conform to social ends. The most noble and honorable thing a judge can do is rule within the limits of the law and Constitution, even if he or she disagrees with the social implications of the law. It is, after all, the only way to ensure an even handed and consistent application of the judiciary.