Elena Kagan’s Oxford Thesis Has Supreme Court Nominee Praising Activist Judges
by Steven Ertelt
June 17, 2010
Washington, DC (LifeNews.com) — When President Barack Obama nominated Elena Kagan for the Supreme Court, he likely spent enough time with her to know she appreciates activist judges who make law from the bench rather than interpret it. Without the benefit of knowing her intimately, pro-life groups are left to research her background.
Americans United for Life has turned up a copy of the thesis Kagan wrote in 1983 at Oxford University that praises agenda-driven judges.
In her graduate thesis, Kagan spends considerable time analyzing the Warren Court — the years from 1953-1969 when activist Earl Warren was Chief Justice and the legal prelude to Roe v. Wade was set.
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 Courts standard of constitutional decision-making.
In a comment that may find its way into her upcoming Senate committee hearings, Kagan said it is "not necessarily wrong or invalid" for Supreme Court judges to "mold and steer the law in order to promote certain ethical values and achieve certain social ends."
According to AUL’s analysis of the thesis, "Kagan does not criticize the Warren Courts vision of a ‘just and fair society informing almost the whole of the Courts 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."
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.
For pro-life groups, that’s exactly what happened in the Roe v. Wade case, which saw the high court manipulate science and politics to overturn laws across the country that offered legal protection for pregnant women and their unborn children.
Kagan believed that for the Warren Court, adhering to federalist principles was simply not as important as creating a just society.
Kagan says that during the 1950s and 1960s, many of the most important innovations in public policy stemmed from judicialrather than from congressional or presidentialactivity The court attemptedif necessary single-handedlyto engineer significant domestic reform: Arguably, the Warren Court became the most innovative and active branch of the American Government.
That concerns the pro-life legal group.
"Does Kagan reject the orthodox view that the judiciary should exercise restraint? Why?" AUL asks. "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 she believe it is the Courts role to ‘create’ such a society, or is it the peoples right, through their elected representatives?" AUL asks.
And AUL wants to know if, as Kagan 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."
AUL concludes: "Elena Kagan has expressed support for the Warren Courts 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 group says.
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