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Kagan File, News, Statements, U.S. Supreme Court

AUL’s Kagan File: The “Foreign Justice” Memo


TO: [Undisclosed Parties]

FROM: Americans United for Life Legal Team

DATE: May 21, 2010

RE: Constitutional law or International law?


During her Senate confirmation hearings last year to become U.S. Solicitor General, Elena Kagan was asked her view of the role of foreign law in statutory interpretation.  Kagan responded: “At least some members of the Court find foreign law relevant in at least some contexts. When this is the case, I think the Solicitor General’s office should offer reasonable foreign law arguments to attract these Justices’ support for the positions that the office is taking.”[1]

Kagan’s high regard for International and Comparative law comes as no surprise.  In addition to her admiration for judicial activist Judge Aharon Barak, who encourages judges to rely on Comparative law, Kagan led curriculum reforms in 2006 that changed Harvard Law School’s 100 year-old curriculum to require International and Comparative law.

What course is no longer required?  Constitutional law.  It became a course students could elect if they so desired.[2]

Our entire legal system is rooted in and dependent on the U.S. Constitution.  To no longer require law students preparing to be lawyers to take Constitutional law is like ceasing to require medical students to take biology or accounting students to take math.

Kagan’s role in revamping the first year curriculum to require students to take International and Comparative law, but not Constitutional law, is especially important given her nomination to the Supreme Court.

  • Kagan said: “The courses in international and comparative law are opening up new questions and possibilities, showing choices made by different societies and challenges that arise from globalization, while also helping every student to locate American law in the larger map of laws, politics, and histories across the world.”[3] Would Kagan’s opinions as Supreme Court Justice rely on international laws and the “choices different societies” have made instead of the U.S. Constitution?
  • As Dean of Harvard Law, Kagan said: “A great law school reflects in everything it does a global perspective and a global context.”[4] Would Kagan seek to make the Supreme Court “great” by reflecting a “global perspective and global context” in her judicial opinions?
  • Kagan also stated: “We must seek to train leaders—creative thinkers and problem solvers capable of designing new institutions to meet individual and social needs during a time of tremendous—perhaps unprecedented—social and economic change.”[5] Would Kagan endeavor to create a “new” Supreme Court to meet the individual and social needs she values rather than adhere to the Constitution?

Kagan led the reform of Harvard’s curriculum to emphasize International law and to de-emphasize American Constitutional law.  She should be deeply questioned during her Senate hearings as to her view of the role of Constitutional law and International law in judicial decision-making.

[1] See Written Questions for Elena Kagan, Nominee to be Solicitor General of the United States available at http://judiciary.senate.gov/nominations/111thCongressExecutiveNominations/upload/Kagan-QFRs.pdf.

[2] Legislation and Regulation was another course added to the new curriculum in 2006, which includes some elements of traditional Constitutional law courses.

[3] See http://www.courts.state.nh.us/press/Kagan_NH_speech_distribution.pdf.

[4] See http://www.courts.state.nh.us/press/Kagan_NH_speech_distribution.pdf.

[5] See http://www.courts.state.nh.us/press/Kagan_NH_speech_distribution.pdf.


A response to Media Matters