Elena Kagan: High Priestess of the Regulatory State: Contrary to Oft-Heard Claims, There Is Plenty of Material Available That Attests to the Type of Supreme Court Justice Elena Kagan Would Make - and Most of It Is Worrisome

Article excerpt

President Barack Obama chose U.S. Solicitor General Elena Kagan, who was the on the top of everyone's predictive "short list," as a candidate for nomination to the U.S. Supreme Court. As an attorney, professor, White House counsel, Harvard Law School dean, and U.S. Solicitor General, Elena Kagan has led a charmed life in the law to this point.


Commentators wrinkle their brows about her alleged lack of a public record that would reveal her legal philosophy and her positions on issues. However, she has produced more than enough in print to allow us to infer her likely approach as a U.S. Supreme Court justice. That record reveals something that mainstream pundits will not admit, lest the real game be given away. Attorney Kagan adheres to a philosophy called "legal positivism" and applies its worldview to her interpretation of the U.S. Constitution. Through the lens of the legal positivist, law has no fixed truth, but must be re-invented and bent to fit the changing needs of society. She has also associated throughout her life with lawyers, judges, and politicians who favor that position.

Arbitrary and Capricious Outcome of Cases

Attorney Kagan's commitment to legal positivism portends a completely arbitrary outcome if she is placed on the High Court. If interpretation of the law is not based on the actual words in the statute or on the intent of the lawgiver, then the law comes to mean whatever the legal positivist wants it to be, and it can changed at a whim. Expediency and the existence of a government edict are the only rules. Though this explanation reduces a complicated philosophy to a caricature, it illustrates the basic problem: In the view of modern jurists, law is not based on objective truth or even on the fact that words have meaning.

Application of this doctrine to Supreme Court cases means that a litigant cannot have the security of a predictable outcome, even when appealing to the plain meaning of the text of the Constitution. Since the actual words of the Constitution are no longer the basis for legal rulings, litigants experience arbitrary and capricious results, which shift with the political winds. Once in a while they get lucky, and the justices will incidentally agree that a phrase in the Constitution actually means what it says, such as the recent Heller decision, affirming an individual right to keep and bear arms. But the court may equally discard its plain meaning, such as when it upheld most of the McCain-Feingold campaign finance law, in direct violation of the clear First Amendment language which says, "Congress shall make no law ... abridging the freedom of speech."

An Exalted View of the Law

Another unstated premise of Elena Kagan's legal positivism is her exalted view of the nature of law, lawyers, and judges, which lies at the heart of why her nomination should not be approved. Her belief is that the law should address all human interactions in a modern regulatory state, and that lawyers and judges are the proper guides for this elitist vision of American life.

Attorney Kagan's extensive writing shows that she is in the grip of a big-government ideology that has done much to ruin the legal system and the entire political landscape. A 100-page piece that she wrote, which appeared in the University of Chicago Law Review, expounds her view. It is entitled "Private Speech, Public Purpose: The Role of Government Motive in First Amendment Doctrine."

In that critically praised article, Professor (at that time) Kagan seems more concerned with justifications for hair-splitting minutia about government control of speech, rather than focusing on how to protect the freedom of speech from government intrusion, which is the purpose of the First Amendment. She rationalizes interference with free speech on many highly technical grounds that only a law professor could love.

One of many examples should suffice. …