Litigation

Kagan Thesis was Critical of Warren Court

By Peter Hardin

Elena Kagan was critical in her 1983 master’s thesis of the Supreme Court under Chief Justice Earl Warren for a criminal evidence ruling. She thought it lacked a sound legal underpinning.

There is much more to Kagan’s Oxford University thesis, however, and every page of it is now available online–along with her Princeton undergraduate thesis and reams of other documents–from the Senate Judiciary Committee. It will start the confirmation hearings for President Obama’s Supreme Court nominee June 28.

Here is an excerpt from Kagan’s thesis, according to a Politico article, about judges using the law to achieve social justice:

?As men and as participants in American life, judges will have opinions, prejudices, values. Perhaps most important, judges will have goals. And because this is so, 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.?

She also discussed limits to a court’s ability to seek social change, a New York Times article reported:

?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.?

Kagan concluded toward the end of her thesis:

“No court should make or justify its decisions solely by reference to the demands of social justice. Decisions should be based upon legal principle.”

For a Supreme Court nominee who never has served as a judge, the academic writings offer a glimpse of the roots of Kagan’s legal thinking. They are likely to be scrutinized by senators, although her thinking may have changed. Last year, for example, she asserted it is not the courts’ role to lead on a path toward social justice.

Her criticism of the Warren Court “may help her defend herself from any claim by Republican senators that she is a judicial activist,” the Wall Street Journal wrote in an article.

Carrie Severino of the Judicial Crisis Network, on the other hand, told Politico that Kagan’s approach in her thesis was “not law-driven, it?s outcome-driven…That?s more of a legal activist, legal realist type interpretation that goes to an indeterminancy-of-law theory.?

Sen. Patrick Leahy, chairman of the Judiciary Committee, chose the June 28 start for hearings over objections from Republicans, who sought more time to review documents, the Associated Press reported.

Kagan, first picked by Obama as U.S. solicitor general, reported to the committee a personal net worth of more than $1.76 million, according to Reuters.

Americans responding to pollster Scott Rasmussen were evenly divided in opinion about putting Kagan on the high court, according to a U.S. News & World Report blog, but 83 percent assumed she will win confirmation.

To learn more about Kagan?s nomination, see Gavel Grab and the Justice at Stake ?Replacing Justice Stevens? page.

Full post as published by The Gavel on May 19, 2010 (boomark / email).