Jonathan Chait

Kagan's Strict Constructionism

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The Wall Street Journal digs up Elena Kagan's 1983 master's thesis, in which she attacks judicial activism:

In the Oxford paper, Ms. Kagan wrote that Supreme Court justices should rest their rulings squarely on a firm legal foundation, such as statutes and court precedents. Only then can court rulings command respect and stand the test of time, she wrote. ...

In the thesis, she wrote that justices sometimes "attempt to steer the law in order to achieve certain ends and advance certain values.…Their concentration on end-results leads them to neglect legal means."

The paper focuses on the exclusionary rule, a criminal-law principle restricting prosecutors from introducing evidence seized illegally by law enforcement.

While an important principle, Ms. Kagan wrote, the Supreme Court overreached in its application during the 1960s, when the court was at its liberal zenith under Chief Justice Earl Warren.

The Journal's story codes this argument as "non-liberal." It certainly was non-liberal when Kagan wrote it, at a time when judicial activism was mainly identified with the left. But as more conservatives have flooded into the judiciary, liberals have grown more chastened about contravening decisions by elected officials, while conservatives have grown much more bold. Republicans still cling to the label "strict constructionist," but at this point strict constructionism places you more on the liberal side.

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