“Equal Justice Under Law,” says Solicitor General Elena Kagan, means that every person who comes before the Court receives the same protections. Perhaps she is unfamiliar with the Court’s affirmative action precedents, which have established racial discrimination of a particular form as permissible throughout the country. More likely, however, is that she is engaging in double-speak.
There was other evidence in support of this appraisal in Monday’s proceedings. For example, Senator John Kerry and Sen. Ted Kaufman said that what was to be admired about the retiring justice, John Paul Stephens, was his dedication to the rule of law. By “rule of law,” it seems, they had in mind not the Constitution itself, but the Court’s precedents. Besides that, Kaufman and Kagan both also mentioned the idea of judicial restraint, by which they seemingly meant that the Court should restrain itself from overturning insupportable left-wing precedents.
Not once did any of the Democrats in the proceedings say anything about enforcing the Constitution as it was understood when it was ratified. Oh, no! Rather, more than one (including Kagan) pointed to the need to respect “principles.” What principles? Surely the principles concocted by the post-1937 Supreme Court.
Perhaps the most significant point Kagan made was that she would be deferential to Congress. Why? Because since the “Switch in Time That Saved Nine” in 1937, liberals on the Supreme Court have put a premium on allowing Congress to do almost anything it wants to do. James Madison may have lamented on learning of the Court’s decision in McCulloch v. Maryland that the Court had given up its essential task of enforcing the line between federal and state legislative authority, but never mind: for the post-New Deal liberal, there is no such line. The non-constitutional idea that the courts should defer to Congress has taken that line’s place. It’s a “principle.”
Besides seeing George Orwell’s insights concerning modern ideologues’ abuse of language vindicated yet again, I found myself annoyed by the Kagan Hearings’ first day in one additional way: the prose Kagan read to the committee was simply awful. Either Kagan is a dullard, or her presentation had been carefully dumbed down and brushed of all personality. It resembled nothing so much, to borrow a phrase, as a bill of lading. Or an Al Gore speech.