As the Senate Judiciary Committee prepares for the upcoming confirmation hearings of Elena Kagan, senators have been poring through thousands of pages documenting many of Kagan’s legal and political views. Among those pages, the New York Times reports, is her Master’s thesis in politics, written at Oxford in 1983, in which she discussed the history of the exclusionary rule (an element of Fourth Amendment jurisprudence) to advance an argument about how courts should go about effecting social change.
The thesis is particularly interesting because it comments on the issue of judicial activism—the charge leveled by judicial conservatives that the rulings of liberals on the bench have been guided not by legal principles, but instead by judges’ personal political preferences. Kagan’s argument in the thesis offers fodder to both sides of the debate. Conservatives may be disturbed by Kagan’s concession that it may be legitimate for judges to use the law to accomplish particular social goals; liberals may cite in reply Kagan’s criticism of past rulings for failing to adequately support this drive toward “social justice” with sound legal reasoning, arguing that the thesis affirms the principle advanced by advocates of judicial restraint that judges must merely interpret the law.
Ultimately, the two sides will likely offer competing characterizations of Kagan’s conclusions: Is she claiming merely that as a pragmatic matter activists on the bench must provide better legal justifications for their decisions in order for those decisions to be well implemented by lower courts and to endure later changes in the composition of the Court, as conservatives may argue, or is she—as liberals seeking to rebut charges of activism may contend—advancing a principled argument that judges’ sole allegiance is to the law?
by Jonathan Sarnoff