Elena Kagan can't say that: the sorry state of public discourse regarding constitutional interpretation.

• Author: Kinkopf, Neil J.

MEMORANDUM FOR THE PRESIDENT OF THE UNITED STATES

From: Ray L. Politik, Counsel to the President

Re: Proposed Statement of Elena Kagan to the U.S. Senate, Committee on the Judiciary, on her nomination to be an Associate Justice of the Supreme Court of the United States

Date: June 2010

I have reviewed the draft statement that Elena Kagan has proposed submitting to the Senate Judiciary Committee. (1) In this statement, Dean Kagan seeks to educate the Judiciary Committee and the American people to think differently about the enterprise of constitutional interpretation. This is a highly quixotic mission with very little chance of success and tremendous potential to do damage to you and to the judiciary. It is, therefore, my recommendation that you urge Elena Kagan, in the strongest terms possible, not to submit the proposed statement. (2) If this effort at persuasion fails, I recommend that you withdraw her nomination.

Dean Kagan proposes to declare that "the 'law' often runs out in difficult constitutional cases. At that point, a Justice has no choice but to bring her personal values, experiences, and judgments to the process. The law, alone, is simply not enough to decide these cases." (3) I want to make it clear at the outset that I do not, in this memo, take issue with the substance of this view. (4) My objections are, rather, strategic. In short, Dean Kagan's confirmation hearing is neither the time nor the place to challenge the prevailing notion of how judges should interpret the Constitution.

The conservative legal movement (5) has succeeded in planting in the minds of much of the American public the idea that there are two types of judges: the liberal, activist judge and the conservative judge. Conservative judges promise to interpret the Constitution according to its text and the original understanding of that text, and without reference to values, experience, or other considerations that are external to the Constitution's text as originally understood. (6) Liberal, activist judges, by contrast, are said to interpret the Constitution according to their own values and experiences in order to "do justice" in the cases they decide. The conservative approach is taken to be legitimate because it maintains the neutrality of the interpreter and prevents the judge from imposing his or her own policy preferences. The liberal, activist approach is understood to be illegitimate because it releases the objective constraints (the text and original understanding) that prevent a judge from altering the meaning of the Constitution. Thus, liberal, activist judges are frequently derided as "legislating from the bench."

The conservative model of what a judge is supposed to do when interpreting the Constitution was famously stated by Chief Justice John Roberts in his opening statement at his own confirmation hearing:

Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire. (7) Even though this formulation had tremendous public appeal, it does not tell us very much about what it means for a judge to call balls and strikes. In fact, it didn't need to. That job--setting forth the substance of the proper, nonactivist method of constitutional interpretation--had been done already by numerous commentators. Robert Bork has written several books since his own failed nomination to the Supreme Court explaining the enterprise. Mark Levin, the conservative talk-show host and writer on legal issues, sums up Bork's work thusly:

originalism "appeal[s] to a common sense of what judges' roles ought to be in a properly functioning constitutional democracy. Judges are not to overturn the will of legislative majorities absent a violation of a constitutional right, as those rights were understood by the framers.... originalism seeks to promote the rule of law by imparting to the Constitution a fixed, continuous, and predictable meaning." (8) Former Justice David Souter has recently attempted to expose the myth at the heart of this dichotomy between conservative and activist judges. In his commencement address at Harvard University, he offered an extraordinarily subtle and thoughtful critique of the judge-as-umpire model and an equally compelling case for values-based judging. His effort is worth an extended excerpt:

The [umpire] (9) model fails to account for what the Constitution actually says, and it fails just as badly to understand what judges have no choice but to do. The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another. Not even its most uncompromising and unconditional language can resolve every potential tension of one provision with another, tension the Constitution's Framers left to be resolved another day; and another day after that, for our cases can give no answers that fit all conflicts, and no resolutions [sic] immune to rethinking when the significance of old facts may have changed in the changing world. These are reasons enough to show how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to...