Faulting NYT’s Kagan Coverage, Already

In their immediate lead on Elena Kagan, the current Solicitor General and Obama’s reported nominee to the high court, the New York Times reports the following while canvassing Kagan’s views on selected issues:

Judicial Activism

In Ms. Kagan’s written responses to Senate questions during her confirmation for solicitor general, she disagreed with the view that the courts should take the lead in creating a more just society. “I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so.”

Solicitor general confirmation hearing, 2009

In so doing, the Times engages in the Republican fiction that “judicial activism” is, and should be, an issue. It shouldn’t be an issue — at least as traditionally framed by conservative politicians — because it shouldn’t be controversial when courts enforce positive rights, even when doing so overrides the legislature, and we shouldn’t be surprised when courts engage in substantive lawmaking incidental to the resolution of a particular dispute, because this is precisely the role that the Founders expected the federal bench to play. By discussing “judicial activism” as such, the Times accepts that there is a controversy when there should be none. You might as well report as newsworthy that a given scientist “believes” in evolution. We shouldn’t care when federal judges, or candidates for the bench, embrace their constitutional role, even if that role has become somehow controversial.

There’s a measure of redemption in the Times‘ positive framing of the definition of judicial activism, as the notion that “the courts should take the lead in creating a more just society.” But even this concedes that “activism” means the Court leads society forwards, when what conservatives call “activism” is really about leading us back to foundational principles, like equality. This is why Democrats lose debates: we accept the other side’s premise, even though doing so means we’ve already lost.


  1. What’s more interesting to me is that Kagan has already had one of her actions ruled unconstitutional by the court (I think the vote was 8-1). I’m curious to hear how that plays to her judgement.

    As for activism, I think you know that the conservative definition is a bit different than the way you are describing it. We’re talking about judges who look beyond the Constitution to right a wrong they perceive in society.

  2. You’re referring to the animal cruelty case, where the Court rejected her arguments on behalf of the government 8-1; you might also indicate FAIR v. Rumsfeld, where she was on the briefs. That was an 8-0 loss.

    Any attribution of fault to Kagan for the animal cruelty case must be premised on a misunderstanding of what the Solicitor General does. Kagan as Solicitor doesn’t make arguments on her behalf; she defends the government’s actions when and how directed to by the government. The decision of whether to defend the statute shows nothing about her judgment, because it’s not her call. And her arguments show she was doing the best with what was a bad case.

    As to FAIR v. Rumsfeld, several of my favorite faculty members wrote the briefs & made the arguments. They knew it was a losing case, but worth it to stand up for the little guy (here, gay students). That Kagan participated says something profoundly positive about her. If you’re going to criticize her for that case, you might as well make fun of Thurgood Marshall. After all, Brown v. Board was a hail mary case, and one that he and his allies repeatedly lost, until they won…

    And looking “beyond the Constitution to right a wrong they perceive in society” is still the wrong way to look at it. The Constitution didn’t freeze in time the year 1789; it set out guiding principles, to be used in resolving serious questions, present and future. When a problem emerges that patterns closely with one solved by the Constitution, such that constitutional values compel a conclusion at odds with history, it would be “activist” to ignore that conclusion, not to follow it. Constitutional norms stay constant and unchanged; the effect they have on the facts on the ground will, however, change, and we should expect as much. For example, if the Fourteenth Amendment says treat similarly situated people similarly, and we discover that a previously oppressed group is, in fact, more “similar” to the rest of us than previously acknowledged, constitutional doctrine should change to reflect that new understanding, and it’s not a matter of updating the Constitution, it’s a matter of applying old rules to new facts, just like we should expect.

    1. I’m talking about the FAIR case. And what was it you said the other day about how it was silly to enact an imigration law in AZ just to advance the conversation? Doesn’t that same logic hold true in the Harvard situation?

      As for judicial activism, I’m not an Originalist. I believe the Constitution is a living document. With that said, I DO think some judges find rights hidden in the folds of the Constitution that don’t really exist based on their own vision of what society should look like. I think the New Haven case was a good example of that.

      As for Kagan – I don’t really have an opinion on her yet. It’s following the schedule I laid out a few weeks ago though. Step 1 was for Obama to nominate a solidly liberal judge with impressive credentials.


      The next step will be for conservatives to scour her speeches, writing, etc and look for a few points to zero in on. Liberals like yourself will defend each criticism in the best way you can. Unless she has an undocumented nanny hiding in the closet or something I expect she’ll make it through Committee and we’ll see a split vote with a few Republican supporters.

      1. “solidly liberal.”

        *snort* Conservatives should pass her in a landslide because she’s as good as it could possibly get under a Democratic President.

        1. I would say ‘solidly liberal’ in the sense that there’s no way in the world Obama put anyone other than a liberal in the position of solicitor general.

          And I’m fine with that. Obama won the election and he should get to appoint whomever he chooses so long as they are deemed qualified. I think she obviously has the academic chops and her politics don’t bother me at all. The only thing I would like to see is for some of her positions to get fleshed out a bit more. We have no idea what kind of judge she would be and that gives me pause.

          1. I won’t spam the blog with links, but have you read anything Glenn Greenwald has had to say on this subject?

              1. oneiroi · ·

                Basically he accuses her of supporting broad executive power and has no signs of really being liberal.

                1. Glad to hear that. We’ll see if it shakes out that way.

    2. Litigation is not legislation.

      1. But they are closely linked and one is often a response to another.

      2. In impact litigation, one expends blood & treasure to assert their client’s rights, conscious that the effort will likely fail, but hoping that the venture itself will make a point. When it DOES fail, none suffer but the litigants.

        The legislative analogue would be drafting a bill with no intention of passing it, just to get the idea out there. When the bill *actually passes*, and enacts into law measures that actually hurt people, the notion that it’s just “advancing the dialogue” must necessarily disappear.

        1. When you say harmful, do you mean in the sense of HCR or somethign else? I mean, as long as it’s fixed in committee, no harm, no foul…right?

        2. You first raised this point in the context of AZ’s immigration law. So we’ve passed beyond “no foul,” right?

          1. The law didn’t hurt anything though – it was amended prior to going into effect.

            The point is, the FAIR thing was about making a statement but it could have also been upheld. One wonders what she will do when a similar situation comes before her.

          2. Sneding an exclusionary message is its own harm — and would the FAIR case have harmed anyone, if it went the other way?

            1. Well if something is ruled unconstiutional isn’t present or future harm implied?

    3. I DO think some judges find rights hidden in the folds of the Constitution that don’t really exist based on their own vision of what society should look like. I think the New Haven case was a good example of that.

      Or for an example which actually passed the Court, Citizens United v. FEC. That one almost gave me flashbacks to Lochner v. New York.

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