TO: [Undisclosed Parties]
FROM: Americans United for Life Legal Team
DATE: June 17, 2010
RE: Kagan’s 1983 Oxford Thesis in Praise of Agenda-Driven Judges
In her graduate thesis, Elena Kagan discusses the exclusionary rule and its evolution through the years depending on the make-up of the Supreme Court. Kagan spends considerable time analyzing the Warren Court (the Supreme Court when Earl Warren was Chief Justice from 1953-1969).
Kagan describes the Warren Court as “a court with a mission… to correct the social injustices and inequalities of American life … [and] to transform the nation.” Kagan states that “the Warren Court justices set themselves a goal…and they steered by this goal when resolving individual cases.” According to Kagan, the “rectification of social injustice” was the Warren Court’s standard of constitutional decision-making.
Kagan states that “there is much to be said for the Warren Court’s ethical sense” because, as Robert McCloskey noted, “‘a living institution, dealing with living problems, [cannot] achieve perfect logical symmetry, for logic overdone can stultify all its touches.’” Kagan continues: “Ethical considerations must—or at least should—play a role in the judicial process.”
Kagan does not criticize the Warren Court’s vision of a “just and fair society informing almost the whole of the Court’s constitutional analysis.” Kagan only critiques the Warren Court because it failed to write “a tenable legal argument” for its decisions regarding the exclusionary rule, leaving them vulnerable to reversal or modification by future Courts.
- Would Kagan think it permissible to translate moral instincts into judicial decisions so long as the justice includes a “tenable” legal argument to support creative legal views?
Kagan states: “U.S. Supreme Court justices live in the knowledge that they have the authority to command or to block great social, political and economic change. At times, the temptation to wield this power becomes irresistible. The justices, at such times, will attempt to steer the law in order to achieve certain ends and advance certain values.”
- Does Kagan believe “steering the law” to achieve specific ends is legitimate?
Kagan states that the “orthodox view of the judicial branch—perhaps best articulated in Hamilton’s seventy-eighth federalist paper—conceives of the courts as relatively passive bodies.” She said this was a “largely negative and restraining role” and that the Warren Court “refused to confine itself” because it “felt a positive duty to assume an active role in the governmental process…” Kagan believed that for the Warren Court, “adhering to federalist principles was simply not as important as creating a just society.”
- Does Kagan reject the “orthodox view” that the judiciary should exercise restraint? Why?
- Would Kagan feel, as she said the Warren Court did, “a positive duty to assume an active role in the governmental process” as a Supreme Court justice?
- Does Kagan believe there is conflict between “federalist principles” and “creating a just society?” Does she believe it is the Court’s role to “create” such a society, or is it the people’s right, through their elected representatives?
- Does Kagan believe, as she said the Warren Court did, that “only the Court [can] voice and give effect to the noblest aspirations of the American people” or “only the court [can] ensure the open and egalitarian operation of the political system?”
Kagan says that “during the 1950s and 1960s, many of the most important innovations in public policy stemmed from judicial—rather than from congressional or presidential—activity…The court attempted—if necessary single-handedly—to engineer significant domestic reform: Arguably, the Warren Court became the most innovative and active branch of the American Government.”
- What are Kagan’s views regarding the Warren Court’s actions and the role of the judiciary? Would she “engineer significant domestic reform” as a Justice?
- Would she insist that the states “closely conform to the Court’s own set of ethical and moral standards,” as the Warren Court did?
Kagan states that “of course, the most meticulously crafted and closely analyzed opinion may not endure the test of time: a future court may overturn such an opinion on the ground that new times and circumstances demand a different interpretation of the Constitution.”
- Does Kagan believe the meaning of the Constitution changes based on the “times and circumstances?”
Kagan says: “Judges are judges, but they are also men…As men and as participants in American life, judges will have opinions, prejudices, values. Perhaps, most important, judges will have goals. And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid.” 
- What would be Kagan’s “goals” if confirmed to the Supreme Court?
- What are the “ethical values” that she would “promote” if confirmed? And what “social ends” would she seek to achieve?
- Does she believe it is legitimate for judges to “mold and steer the law” to promote her “ethical values” and to achieve her “social ends?”
Elena Kagan has expressed support for the Warren Court’s vision of how the Supreme Court is to transform society. Judiciary Committee members must press Kagan on whether she stands by the comments she made in her thesis that it is acceptable for judges to mold and steer the law in accordance with their own desired social ends. Unless she repudiates these statements and their implications under oath before the American people, Senators should reject her nomination to the Supreme Court.
 “The Development and Erosion of the American Exclusionary Rule,” Elena Kagan, Oxford University, June 27, 1983, http://judiciary.senate.gov/nominations/SupremeCourt/upload/ElenaKagan-OxfordThesis.pdf.
 Id. at 40.
 Id. at 40.
 Id. at 40.
 Id. at 63.
 Id. at 63.
 Id. at 41.
 Id. at 6 (emphasis added).
 Id. at 6.
 Id. at 41.
 Id. at 41-42 (emphasis added).
 Id. at 44 (emphasis added).
 Id. at 41-42.
 Id. at 42 (emphasis added).
 Id. at 42.
 Id. at 41.
 Id. at 119-120 (emphasis added).