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Kagan's Testimony Reveals A Weak Constitution


I get a sense of the threat we may face, from a Supreme Court influenced by Elena Kagan, in her vow to defer to the political branches of government when interpreting the Constitution. This is a stance now being trumpeted by, e.g., environmental(ist) trade press outlets like E&E News. E&E runs a headline right now: “Kagan stresses deference to Congress, agencies” (subscription required).


That curious turn of phrase is Kagan’s own. It is not one nuanced with, say, a concern for divining legislative intent, but instead is a broad expression of deference to bureaucrats and politicians. Not to the Constitution. This is illuminating.

Taken in context, it is chilling. As Yahoo News writes:

“In her opening statement to the Senate Judiciary Committee, Elena Kagan vowed to show restraint and deference to Congress and the will of the people if ultimately confirmed to the Supreme Court, emphasizing the court “must recognize limits on itself and respect the choices made by the American people.”

“The Supreme Court is a wondrous institution,” Kagan said. “But the time I spent in other branches of the government reminds me that it must always be a modest one — properly deferential to the decisions of the American people and their elected representatives.”

The reporter first conveys the by now de rigueur implication of the attitude of restraint. But presumably in seeking to preempt claims that as someone with an extensive political history she would be an activist justice, Kagan manages to nonetheless betray the feared disregard for the Constitution.

The Supreme Court’s role is to apply the Constitution to laws enacted by the legislature, and to how those laws are being executed (or otherwise as the political branches choose to interpret or assert authority). It is the Constitution to which our non-political branch of government the courts, and certainly Supreme Court Justices, must defer.

Not the political branches. Political branches give us, say, Power Grabs. Courts are a check, to apply the Constitution to rein politicians and bureaucrats in.

The Court is not to defer even to “the American people”. Deferring to the American people is the job of the political branches. We don’t want a political Court. We are getting one.

Beyond the fairly recent doctrine of “deferring to agency expertise” — which in itself has produced an unreasonably steep hill to climb when challenging otherwise transparently arbitrary actions by agencies running amok with what are generally unconstitutionally vague legislative grants of authority — to view the courts’ role as one of deferring to the political branches is disturbing. To note this is not the same as advocating an imperial court, which has also been creeping on us for years and which is itself a manifestation of disregard for the Constitution’s text and original intent.

Possibly in this opening stanza of Ms. Kagan’s testimony we see one downside of appointing someone with no judicial experience to the high court. The attitude expressed is surely an attitude more common in Ivy League faculty lounges than on the bench (and not only because too many courts see themselves as other than part of a co-equal branch).

Regardless, this answer is terrifying as we witness the creep of government’s recent break into a sprint.

A Justice Kagan should properly defer to the Constitution, with scant concern for political whimsy. But what we see here, in her expressed instinct to instead defer to bureaucrats and politicians, is yet further illustration of the mindset of those who disdain the idea of the Constitution being more than just a crutch to support a desired outcome conforming to the fashions of the day.

No less than a vow to defer to what foreign lawmakers and courts say when interpreting our Constitution, a promise to defer to the political branches of our government are the words of someone who rejects a textualist or even an originalist view. Even if, as with Ms. Kagan, they refuse to acknowledge that they are possessed of any philosophy of constitutional jurisprudence at all.

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