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

AUL’s Kagan File: The “Agenda-Drive Judge” Memo


TO: [Undisclosed Parties]

FROM: AUL Legal Team

DATE: June 11, 2010

RE: Agenda-Driven Judging

Over the course of the next month, you will hear from Americans United for Life and others that Elena Kagan will be an “agenda-driven judge.”  The questions become—what does it mean to be such a judge?  Why is this cause for concern to the vast majority of Americans who oppose any expansion of abortion?  Why is it a danger to democracy?

Agenda-driven judging entails deciding cases based on one’s own political and social ideology rather than the Constitution.  One need only look at how a judge decides a case to determine if he or she is an agenda-driven judge—is she making a reasonable inference based on the text and structure of the Constitution or statute?  Or, is she deciding based on what she “believes” “justice” requires?  If the latter, she is probably an agenda-driven judge.  As Justice Thurgood Marshall (an ardent and unabashed agenda-driven judge and one of Elena Kagan’s mentors) described his judicial philosophy, “You do what you think is right and let the law catch up.”[1] That is simply lawlessness, substituting one man’s personal preferences for a written rule of law.

Agenda-driven judging has been devastating to the lives of unborn children.  In Roe v. Wade,[2] the Court relied on a definition of a word, “privacy,” that is not mentioned in the Constitution, in order to declare abortion a “right.”  Privacy was first “discovered” by the Court in Griswold v. Connecticut,[3] where Justice William Douglas held that the Bill of Rights had certain “penumbras” that were “formed by emanations,” and it was there that the federal right to privacy was found.[4] This federal right to privacy was expanded in Roe to include a right to abortion.  What the Court in Roe did not find while searching around in the penumbras and emanations of the law was the unborn child’s right to life.  The Court in Roe cloaked itself with the Constitution, but only to achieve what it wanted to achieve, the legalization of abortion.  The Court’s rather distorted reading of the Constitution was an instance of agenda-driven judging.

Elena Kagan has no judicial record to review to determine whether she will be an agenda-driven judge.  However, Kagan’s mentor, whom she deeply admired, Justice Thurgood Marshall, might offer a glimpse of what her judging style would be.  She called his jurisprudence “a thing of glory.” [5] What did that mean in practice?  In 1977’s Beal v. Doe, Justice Marshall argued for extending the Equal Protection Clause to mandate tax-payer funded abortions.  None on the Court were willing to follow Marshall this far from the Constitution.  Remember, Justice Marshall was arguing that the Constitution requires the tax-payer to fund abortion.

Kagan has also stated that her “judicial hero” is former President of the Supreme Court of Israel, Aharon Barak.[6] The Honorable Justice Richard Goldstone has said that Barak is “unashamedly what, in U.S. terms, would be regarded as an ‘activist judge.’”[7] Some of Judge Barak’s more notable decisions have involved telling the military where they could place a security fence to keep suicide bombers from crossing into Israel from the West Bank,[8] deciding whether to release terrorists within the framework of a political “package deal,”[9] and determining that all decisions about which enemy combatants may be detained for interrogation have to first go through the judiciary.[10]

Barak’s expansive view of the judiciary is a byproduct of his “purposive interpretation” of constitutions.  A purposive interpretation entails, according to Barak, the judge as a “partner to the authors of the constitution.  The authors establish the text; the judge determines its meaning.”[11] This method of interpretation is Barak’s vision for the American judicial system.  Barak laments the use of “originalism” by the American Supreme Court, which means simply trying to understand a text as the authors intended it, stating “[w]hy can some enlightened democratic legal systems (such as those of Canada, Australia, and Germany) extricate themselves from the heavy hands of intentionalism and originalism in interpreting the constitution, while constitutional law in the United States remains mired in these difficulties?”[12] Yet, despite his wild theories, his association with Harvard Law School was for Kagan the one of which she, when Dean, was “most proud.”[13]


Elena Kagan needs to explain why two of her major judicial influences were both agenda-driven judges.  Justice Marshall, like Elena Kagan, was Solicitor General before being nominated to the Supreme Court.  When he joined the Supreme Court, he continued as an advocate rather than upholding the law impartially.  He wholeheartedly took on the role of an agenda-driven judge, believing that a judge should simply rule as he thought right, no matter what the law said.[14]

Further, the “purposive constitutional interpretation” of Kagan’s judicial hero, Aharon Barak, has never been implemented in American constitutional jurisprudence.

Ms. Kagan needs to answer questions about her judicial mentor and her judicial hero.  Justice Marshall’s jurisprudence was in many respects agenda-driven and lawless.  Judge Barak’s judicial philosophy would be even worse.  What would Elena Kagan’s be?

[1] Deborah L. Rhode, Letting the Law Catch Up, 44 Stan. L. Rev. 1259, 1259 (1992).

[2] Roe v. Wade, 410 U.S. 113 (1973).

[3] Griswold v. Connecticut, 381 U.S. 479, 484-85 (1965).

[4] Id. at 484.

[5] Elena Kagan, For Justice Marshall , 71Tex L. Rev. 1125, 1130 (1993).

[6] Rebecca Agule, Distinguished Israeli Jurist Receives 2006 Justice Prize, Harvard Law Record, Sept. 28, 2006 available at http://www.hlrecord.org/2.4463/distinguished-israeli-jurist-receives-2006-justice-prize-1.578536.

[7] Goldstone, Richard, The Jurisprudential Legacy of Justice Aharon Barak, 48 Harv. Int’l L.J. Online 54 (2007).

[8] Aharon Barak, The Judge in a Democracy,  289, Princeton UP, 2006.

[9] Id. at 180.

[10] High Court of Justice, Marab et. al v. IDF Commander in the West Bank [2002] available at http://elyon1.court.gov.il/Files_ENG/02/390/032/A04/02032390.A04.HTM.

[11] Id. at 135.

[12] Barak, supra n. 7 at 133.

[13] http://www.senate.gov/fplayers/I2009/urlOfficeOpenPlayer.cfm?fn=9093039100519112912

[14] See Rhode, supra n 1 at 1259.