Elena Kagan’s Living Constitution

Kagan’s advocacy for a living constitution should kill her Supreme Court chances.

As Elena Kagan’s Senate testimony concludes, the talk of Washington is dominated by admiration for her artful ability to avoid committing herself to positions that might imperil her confirmation to the Supreme Court. This reaction is ironic, because Kagan entered her Senate hearings having already committed herself in writing to a position that should kill her chances for confirmation. For Kagan’s published scholarship demonstrates that the “living constitution” is alive and well and even growing and changing. That is, this theory of constitutional interpretation, which holds that the constitution should change over time, has itself been modified by Kagan and her generation of liberal judicial activists. This updated living constitutionalism, however, is even less compatible with a judge’s duty than the old, a problem left largely unexplored by Kagan’s Republican critics on the Senate Judiciary Committee.

The older version of living constitutionalism was famously defended by Justice William Brennan in his 1985 speech at Georgetown University entitled “The Constitution of the United States: Contemporary Ratification.” In that speech Brennan rejected calls for a jurisprudence of “originalism” and instead insisted that the constitution should be interpreted in light of contemporary values. Brennan strictly averred, however, that these contemporary values must not simply be the judge’s own values. Rather, the judge’s task is to discern the community’s current interpretation of the constitution, to be guided by the public’s contemporary values, and not by his own idiosyncratic beliefs, in deciding constitutional cases.

The problem is that often a constitutional case demonstrates the existence of an important clash of values within the community itself. Frequently, such a case will involve a clash between a majority whose values have been enshrined in law or policy through the democratic process and an individual or minority that cannot prevail politically and thus has had recourse to the courts. A judge who invokes the “living constitution” to invalidate democratically enacted policy in such a case—and this is a use of living constitutionalism that its proponents have not been reluctant to embrace—is not finding a solution based upon the community’s values. He is rather siding with one part of the community over another, and, again, in many cases siding with a minority position over a majority position. In view of this conflict within the community, and hence the inability of “community values” to give him any clear guidance in the dispute before him, he is deciding which set of values he agrees with or thinks more just and ruling accordingly. That is, he is imposing his own values, which is precisely what Brennan had said must not be done.

In some recently reported and widely defended comments, Supreme Court nominee Elena Kagan has gone much further, suggesting that judges may properly be guided by their own values in deciding cases. In a 1995 review of Stephen Carter’s The Confirmation Mess, Kagan approvingly quoted Carter’s claim that “the interpreter’s own experience and values become the most important data” at a “crucial moment” that arises in most cases heard by the Supreme Court. Then, speaking clearly for herself, Kagan adds that “it should come as no surprise by now that many of the votes a Supreme Court justice casts have little to do with technical legal ability and much to do with conceptions of value.” According to Carter, this is the proper mode of resolving controversial questions such as “flag burning, segregated schools, and executive power,” and Kagan adds that one could cite “countless more” examples.

Supporters of Kagan’s nomination have defended her by pointing out that her views are widely shared by members of the American legal left. In fact, her position is not in principle different than that of President Obama last year when he contended for the role of a judge’s sense of “empathy” in deciding important cases. After all, a judge’s values will inexorably influence which litigants receive the benefit of his empathy. In her book review Kagan reveals herself as, if anything, an even more ardent judicial activist than her presidential patron. In defending his theory of judicial empathy, President Obama went out of his way to insist that the proper legal answer would be clear to a judge or justice in the vast majority of cases, but that empathy would have to come into play in the handful of truly difficult cases that the Court must confront from time to time. In contrast, as the language quoted above indicates, Kagan thinks that a justice’s own values and experiences, and not technical interpretations of the law, will be the most important considerations in “many” and perhaps even “most” cases the Court must resolve.

Kagan’s new living constitutionalism, according to which individual jurists breathe the life of their own meanings into our fundamental law, is even less defensible than the earlier version articulated by Justice Brennan. It is not even an accurate description of what Supreme Court justices do, or at least not an accurate description of how they present what they do. One can seek almost in vain for examples of Supreme Court opinions in which the author even refers to his own experiences and values, let alone deploys them as the decisive considerations for the case in question. In the few cases when such considerations are mentioned, they are often raised so that a Justice can demonstrate his personal sympathy with the side for which he cannot, for legal and constitutional reasons, render judgment.

This is not to say that justices are never influenced by their own values in their work. Any astute observer, by discerning the weakness of the legal reasoning deployed in many cases, can reasonably conclude that the justices could not have been guided by anything other than their own values. The unwillingness of justices to state their personal reasons for the public record, their insistence on crafting opinions in terms of objective legal analysis, suggests that they know that the personalized justice advocated by Elena Kagan cannot stand the light of day. They know that to embrace it openly would be to destroy the Court’s legitimacy by openly flouting long-established, deeply-rooted American expectations about the role of courts in a constitutional democracy.

The idea that judges should be guided by their own values in rendering judgment is not one that anyone can honestly and consistently embrace. For if liberal judges may properly be guided by their own values, then conservative ones can be as well. But does anyone really believe that if a majority of conservative justices were to overturn, say, Roe v. Wade, simply on the basis of the justices’ own moral convictions about abortion, Elena Kagan and her supporters would not complain bitterly about both the outcome and the illegitimacy of the reasoning? In the face of such a difficulty, the proponents of Kaganism must either admit that, as a matter of principle, judges should not be guided by their own values, or claim that only liberal judges may properly be guided by their own values. To admit the former is to surrender their position. To claim the latter is to reveal their jurisprudence as a barefaced exercise of power.

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