Elena Kagan And The Warren Court

I for one am looking forward to the confirmation hearings for Elena Kagan  come late June when she will spar with the Senate Judiciary Committee.   I always enjoy court confirmation hearings regardless of the politics involved.  The  law and the history of it fascinates me.  Every occasion for such hearings allows me to learn more and think about issues that are bigger and far more interesting than what we encounter as daily news headlines.    If you have been following the back-and-forth over Kagan’s thesis on the Warren Court  during the past days, and find it intriguing , than you know of how I feel.

One passage that jumps out is her assertion that “if a court cannot justify a legal ruling in terms of legal principle, then that court should stay its hand.”

It’s hard to argue with that. But you have to wonder whether the current Kagan would agree with her younger self when it comes to the most headline-grabbing victory for the Court’s liberals this term, which is expected to wind down by about June 28. That also happens to be the first day of Kagan’s Senate confirmation hearing, unless the schedule slips.

The case is Graham v. Florida. Earlier this week, the Court’s four liberals and sometimes-liberal Justice Anthony Kennedy struck down laws in 37 states and an act of Congress that allowed for sentences as severe as life without parole for juveniles whose crimes did not include homicide.

Stripped to its essence, the decision was based on little more than the personal policy preferences of the five majority justices — preferences with which I happen to agree.

But policy preferences are not constitutional commands. Not unless you subscribe to what the late, liberal lion William Brennan used to call the “rule of five.” As Justice Brennan explained it to law clerks, “If you have five votes, you can do anything you want around here.”

So where would Kagan have come down in Graham? You might imagine from her resume that she would have voted with the liberal majority. But consider that passage, and others, from her 134-page master’s thesis. She wrote it while in her early 20′s, studying at Oxford University after graduating from Princeton and before entering Harvard Law School.

The thesis implies that Kagan shared the Warren Court’s liberal values and policy goals. And she wrote that “it is not necessarily wrong or invalid” for judges to “try to mold and steer the law in order to promote certain ethical values and achieve certain social ends.” But her major point was that in order to justify judicial review, to “stand the test of time,” and to avoid being overruled by future justices, the Court’s decisions “must be plausibly rooted in either the Constitution or another accepted source of law,” and that “no court should make or justify its decisions solely by reference to the demands of social justice.”