Note: It’s worth comparing this article with Sen. Jon Kyl’s opening statement in Kagan’s confirmation hearings, which seems to have drawn on the same sources — or used this article as an uncredited source. It’s reassuring that I was on the same wavelength as Kyl. This article is part two of a series on Supreme Court nominee Elena Kagan. To read part one, (“Elena Kagan and Social Issues”) click here. To read part three, “Foreign Law: Coming Soon to a Supreme Court Near You,” click here. — TRW.
I argued last week the decision to confirm Elena Kagan to the Supreme Court, where she could spend the next 40 years reinterpreting the Constitution, should focus on her legal philosophy rather than murky questions about her sexual orientation. There is but one problem with this approach: it appears Kagan has published extraordinarily little for us to judge. Paul Campos of The Daily Beast recounted, “in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship – three law review articles, along with a couple of shorter essays and two brief book reviews.” Remarkably, Kagan received tenure at the University of Chicago “in 1995 on the basis of a single article in The Supreme Court Review – a scholarly journal edited by Chicago’s own faculty – and a short essay in the school’s law review.” Even her slender canon of articles generally assesses the views of others without breaking new ground. As Campos summed up, “Kagan is more or less an academic nonentity.” (Coincidentally, her mentor, Abner Mikva, told Business Week a few years ago, “The best way a judge can get nominated and confirmed is to have as little a paper record as possible. Judges aren’t writing as many law review articles, and their decisions are much narrower than they used to be.”)
Does this mean we have no way to divine her judicial views? No. Kagan has given us a glimpse of her worldview by those whom she has hailed as heroes: judicial activists who disregard our Founding Fathers’ intent, see the Court as an instrument of social change, support abortion, and want American law interpreted by foreign law.
Kagan saluted two of America’s foremost proponents of the “living Constitution” by name on Monday when she was formally nominated. Her voice swelled with pride as she said, “I clerked for a judge, Abner Mikva, who represents the best in public service, and for a justice, Thurgood Marshall, who did more to promote justice over the course of his legal career than did any lawyer in his lifetime.” She named two other legal scholars – Cass Sunstein and Aharon Barak – before being named Solicitor General. All four members of this quartet should frighten anyone who cherishes our Founding Fathers’ system of limited government and inalienable rights.
Abner Mikva had a rare career: being one of the few Americans to serve in all three branches of government. Mikva represented the state of Illinois in the House of Representatives for eight years before Jimmy Carter nominated him to be a federal judge in 1979. Some considered him Carter’s likely appointment to the Supreme Court had he gotten the opportunity. Instead, Mikva settled in as a judicial activist on the second circuit court of appeals. In 1994, he retired from the bench to work for the Clinton administration, then returned to Chicago. As a judge and a professor, Mikva developed and maintains a strong relationship with Barack Obama that borders on cronyism.
Mikva was, and is, an avowed “progressive.” He and wife Zoe sent a congratulatory message to the Democratic Socialists of America in 2002. (For an outstanding overview of his extremist connections, see this profile.) Since Mikva was a strong advocate of gun control with a corresponding low view of the Second Amendment, the National Rifle Association spent $1 million lobbying against his confirmation. Ultimately, Mikva took office – two years before he was constitutionally eligible. Despite the group’s activism against him, and the fact that Mikva had long referred to the NRA as the “street-crime lobby in Washington,” he did not recuse himself when a case involving the NRA came before his court; instead, he ruled against the NRA. As Clinton White House counsel, he confessed gun control laws could only be enforced by allowing police to present evidence from unconstitutional searches and seizures (making it unconstitutional on two grounds). In 1993, he offered a novel opinion that the military could not ban open homosexuals from the military unless they were caught actively engaging in sodomy. Mika did not believe “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.” A year later, his former court overturned him
Kagan clerked for Mikva in 1986-7. It was Mikva who recruited Kagan to work for the Clinton administration in 1995. There, according to the L.A. Times, Kagan “drafted an executive order restricting the importation of certain semiautomatic assault rifles.”
Thurgood Marshall: The Worst Justice in Modern History
After leaving Abner Mikva’s bush league activism, Kagan clerked for Supreme Court Justice Thurgood Marshall. Since no other conservative commentator seems to have marshaled the courage to enunciate this truth in the last week, I will say the unthinkable: Thurgood Marshall was a judicial revolutionary who disdained our Founding Fathers and the nuclear family at every opportunity, relished his ability to impose his views via the law, urged the court to discriminate against white people, longed for the redistribution of wealth along racial lines, and loosened the strictures on abortion and pornography. He was a walking Constitutional convention with a scatological sense of humor.
Kagan spoke glowingly of Thurgood Marshall’s advice that justices “show a special solicitude for the despised and disadvantaged…to safeguard the interests of people who had no other champion.” Kagan defended Marshall’s liberal judicial philosophy, saying, “however much some recent justices have sniped at that vision, it remains a thing of glory.”
Marshall described his vision to a gathering of Supreme Court clerks in less grandiloquent terms: “You do what you think is right and let the law catch up.” Another of Kagan’s heroes, Obama Regulatory Czar Cass Sunstein (who also clerked for the Supreme Court justice), said, “Marshall is responsible for the idea that social reform, through the Courts in the name of the Constitution, was both possible and desirable.”
To further his social revolution, Marshall consciously rejected the founders’ view of the document they wrote and lost few chances to ridicule them. RNC Chairman Michael Steele made one hapless and misguided attempt to point out Marshall’s disrespect for the Constitution last week, noting that the justice called it “flawed.” (Barack Obama has used identical language about the Constitution, saying that “fundamental flaw…continues to this day.”) But Marshall supplied Steele with an abundance of unused material. In 1987, Thurgood Marshall intoned the bicentennial of the U.S. Constitution would prompt “proud proclamations of the wisdom, foresight, and sense of justice shared by the Framers and reflected in a written document now yellowed with age. This is unfortunate.” He added, “I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound.”
I’m sure they would reciprocate.
After rehearsing the familiar litany of complaints against the slaveholding founders (which I refuted here and here), Marshall praised “those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality,’ and who strived to better them.” He encouraged people to learn “the Constitution’s inherent defects, and its promising evolution,” which he rightly judged would be “a more…humbling experience.”
Here the justice exposed the heart of his judicial philosophy: Succeeding generations have the duty to recast the Constitution in their own image, because they are morally superior to the founders.
Redefining the family became part of his ongoing sociological jurisprudence. Marshall once said he disagreed with the notion “that the ‘nuclear’ family is the basic building block of our society.” It was, he said, merely “a middle class norm that government has no business foisting on those to whom economic or psychological necessity dictates otherwise.”
In his view, the government had more important decisions to impose. He advocated a sweeping distribution of wealth from whites to blacks. If that seems stark, Marshall’s description was more so. Supreme Court Justice William O. Douglas, who believed the purpose of the Constitution was “to keep the Government off the backs of the people,” recounted in his autobiography The Court Years: 1939-1975 that during the Affirmative Action debate, Thurgood Marshall once told him: “You guys have been practicing discrimination for years. Now it’s our turn.” (Marshall had used crude, discriminatory language before, telling a black publisher, “those white crackers are going to get tired of having Negro lawyers beating them every day in court.”)
He made the same argument, in more elevated terms, in his opinion in the Bakke case, which permitted reverse discrimination in American universities under certain conditions. He argued for widespread quotas thus: “during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.” He continued with the paradoxical argument that “we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America” in order “to become a fully integrated society, one in which the color of a person’s skin will not determine the opportunities available to him or her.” This must progress even if blacks must be “accorded greater protection under the Fourteenth Amendment” than whites “where it is necessary to remedy the effects of past discrimination.”
Ever the social revolutionary, Marshall “redistributed” the right to life, denying it to the innocent but granting it to the guilty. Not only did he support Roe v. Wade, but his contribution liberalized abortion law further than it might have otherwise been. Justice Harry Blackmun wanted to allow states to regulate abortion heavily after the first trimester. Seeing an early draft of the decision, Marshall replied abortion after the third month should be subject to restrictions “directed at health and safety alone.” In the delicate political negotiations leading up to the decision, Blackmun incorporated Marshall’s view into his ruling.
Although he had little use for innocent life (as does Kagan), Marshall held the death penalty to be inadmissible and unconstitutional in all cases, regardless of the severity of the crime committed. In part due to his decision in Furman v. Georgia, the death penalty was suspended for four years in the United States. Again, race colored his thinking. Citing disparate impact – the fact that more blacks were put to death than whites – he claimed the death penalty is “an open invitation to discrimination.” Further, it was unnecessary. “[M]urderers are extremely unlikely to commit other crimes, either in prison or upon their release,” he wrote. “For the most part, they are first offenders, and, when released from prison, they are known to become model citizens.” He considered capital punishment cruel and unusual, and deemed the practice “morally unacceptable to the people of the United States at this time in their history.” Unfortunately, most Americans supported the death penalty. He replied that even though Americans approved of the practice, they should find it repulsive. Marshall dodged, “the question with which we must deal is not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in the light of all information presently available.” In his view, the definition of the Constitution is up for a revolving vote – and only a Supreme Court justice is qualified to make the decision.
…Even if he is not a justice of the United States Supreme Court. In abolishing the death penalty, Marshall cited international law, noting America would now “join the approximately 70 other jurisdictions in the world which celebrate their regard for civilization and humanity by shunning capital punishment.” The justice would not consult the law or public opinion in his own country, but he compared notes with other members of his elite guild around the world.
As part of his war against public moral standards, Marshall struck down laws outlawing the possession of pornography. The Supreme Court and Anglo-Saxon legal precedent long held the First Amendment does not protect obscenity, which the Court defined as any material that offends local standards, appeals to prurient interest, and “lacks serious literary, artistic, political, or scientific value.” In his majority opinion for 1969’s Stanley v. Georgia, Marshall wrote that “the mere private possession of obscene matter cannot constitutionally be made a crime,” because a man has “the right to satisfy his intellectual and emotional needs in the privacy of his own home.” Marshall added, “Nor is it relevant that obscene materials in general, or the particular films before the Court, are arguably devoid of any ideological content.” He denied that “exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence. There appears to be little empirical basis for that assertion.” Privately, he admitted, “Of course it hurts children, but keep it away from them. Liquor hurts children too, keep it away from them. Drugs hurt children, keep it [sic.] away from them.”
Thurgood Marshall inflicted lasting damage on the United States during his term on the court. But what did Elena Kagan learn at his feet? Apparently, a similar contempt for Constitutional rights.
Clerk Kagansent a memo to Thurgood Marshall concerning the 1987 case Sandidge v. United States, which the Supreme Court declined to review. That decision let stand a lower court’s ruling that the Second Amendment does not allow individuals to own firearms, but only permits the state to raise a militia. Kagan wrote to Marshall that the plaintiff’s “sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms.’ I’m not sympathetic.”
With heroes like this, who could expect any less?
Although Kagan still holds Marshall’s philosophy up as “a thing of glory,” she threw him under the bus for private advantage. During her confirmation hearings for Solicitor General, Kagan was confronted with a memo she wrote as a clerk for Marshall which stated “all religious organizations should be off limits” for federal funding. Twenty years later, Kagan called that line “the dumbest thing I ever heard.” And she blamed her stupidity on Thurgood Marshall. At the time she wrote the memo, she stated: “I was a 27-year-old pipsqueak and I was working for an 80-year-old giant in the law and a person who – let us be frank – had very strong jurisprudential and legal views…and he was asking us in the context of those…petitions to channel him, and to think about what cases he would want the Court to decide.”
If her opinions were dumb, then she channeled Marshall exquisitely.
Thurgood Marshall’s jurisprudence was not a thing of glory but an object of blunt force trauma directed at any legal principle that stood in the way of his liberal agenda. Kagan learned well from him – and so did another of her favorite legal minds.
Cass Sunstein: The Most Dangerous Lawyer Alive?
In February 2008, Elena Kagan hired Cass Sunstein, who is now Obama’s Regulatory Czar, to the Harvard Law School, praising him as “the preeminent legal scholar of our time.” For those familiar with Sunstein’s jurisprudence, the words are chilling.
On January 15, 2008, Sunstein co-authored the paper “Conspiracy Theories” with his Harvard Law School colleague Adrian Vermeule. The two suggested government agents, “anonymously or even with false identities,” target and “cognitively infiltrate” any organization disseminating conspiracy theories the government disfavors and undermine it from within. He suggested:
We can readily imagine a series of possible responses. (1) Government might ban conspiracy theorizing. (2) Government might impose some kind of tax, financial or otherwise, on those who disseminate such theories. (3) Government might itself engage in counterspeech, marshaling arguments to discredit conspiracy theories. (4) Government might formally hire credible private parties to engage in counterspeech. (5) Government might engage in informal communication with such parties, encouraging them to help.
Although Sunstein currently favors “a mix of (3), (4) and (5),” he commented “each [proposal] will have a place under imaginable circumstances.” Under what circumstances could the government ban, or tax, speech under the First Amendment? Even hiring anonymous agents to spread the government’s point of view is in all likelihood illegal, qualifying as propaganda directed against American citizens. Equally chilling are the innocuous messages he wants to silence. One of the conspiracy theories he listed is, “The theory of global warming is a deliberate fraud.” In a lecture on the topic, Sunstein threw out another verboten idea: that Barack Obama “pals around with terrorists.” In his 2009 book On Rumors, Sunstein criticized Sean Hannity for noting the “alleged associations” of Barack Obama and Bill Ayers. Sunstein suggested in The Bill of Rights in the Modern State that government force successful broadcasters to subsidize less successful counterparts whose programming is preferred by the state.
Like Kagan and Sunstein’s mutual mentor, Cass is hostile to the family unit. In his 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness, Sunstein proposed eliminating government sanction of marriage. In his plan, “the only legal status states would confer on couples would be a civil union, which would be a domestic partnership agreement between any two people.” (Emphasis added.) He likened the union of a husband and wife to other “private commitments,” such as “homeowners’ associations, and country clubs.” Not only do Kagan and Sunstein support the right to abortion, they believe the government has the duty to subsidize it. Sunstein wrote in his 1993 book The Partial Constitution, “I have argued that the Constitution…forbids government from refusing to pay the expenses of abortion in cases of rape or incest, at least if government pays for childbirth in such cases.” To deny abortion funding turns women “into involuntary incubators” and “would require poor women to be breeders.”
To justify massive redistribution, Sunstein destroys all distinctions “between ‘negative’ and ‘positive’ rights.” In legal parlance, the right to free speech, freedom of worship, or freedom of assembly are called “negative rights,” because the Constitution restrains the government from infringing upon them (e.g., “Congress shall make no law….”). Judicial activists contrast these with “positive” rights, which judges claim the government must bestow on its citizens – for instance, the much-repeated phrase that “every American has the right to free health care.” Sunstein insists we should “celebrate tax day,” because the right “to private property, freedom of speech, immunity from police abuse, contractual liberty, free exercise of religion – just as much as rights to Social Security, Medicare and food stamps – are taxpayer-funded and government-managed social services.” President Obama similarly dismissed the difference between negative and positive rights in a 2001 NPR interview. The prolific Sunstein listed a wide variety of “positive rights” in his 2004 book The Second Bill of Rights: FDR’S Unfinished Revolution and Why We Need It More than Ever, including the right to a “useful” job.
As Marshall granted “greater protection” to blacks than whites, some suggest Sunstein wants to redistribute rights from humans to animals. He wrote, that to reduce animal suffering, “We could even grant animals a right to bring suit” against human beings.
And like Marshall, Sunstein favors consulting foreign law to interpret the U.S. Constitution, which he calls “constitutional cosmopolitanism.” This leaves him something in common with Kagan’s fourth hero.
Aharon Barak: Israel’s “Big Brother”
During his September 2009 visit to Harvard Law School, Kagan stated that Aharon Barak, the former president of the Israeli Supreme Court, “is my judicial hero. He is the judge who has best advanced democracy, human rights, the rule of law, and justice.” Robert Bork had another view. Bork said Barak’s book, The Judge in a Democracy, “establishes a world record for judicial hubris.” Aharon Barak revealed an all-encompassing view of the law, and hence of the State, in 1992:
In my eyes, the world is filled with law. Every human behavior is subject to a legal norm. Even when a certain type of activity – such as friendship or subjective thoughts – is ruled by the autonomy of the individual will, this autonomy exists, because it is recognized by the law….Wherever there are living human beings, law is there. There are no areas in life which are outside of law. (Emphasis added.)
In sweeping contrast to the view of the American founders, who believed no government can infringe on our God-given rights, Barak believes our personal freedoms (“autonomy”) exist only because the law has not yet snuffed them out. Yitzchok Adlerstein, writing in Jewish Law, commented of Barak’s view, “Big Brother in judicial garb is still Big Brother.” Here, one sees the obliteration of “negative” and “positive” rights brought to its logical conclusion: If there is no difference, then providing the latter may require regulation of the former.
Aharon Barak changed the face of Israeli law to bring this about. He transformed (some would say, discarded) the doctrines of locus standi and justiciability. In layman’s terms, Barak felt anyone could bring a lawsuit on behalf of any concern, and the court had jurisdiction to hear virtually any matter. For instance, Barak claimed the court had “the right to judge the deployment of troops in wartime.”
Barak, too, cited foreign law, especially that of Canada, in interpreting the Israeli constitution. In The Judge in a Democracy and elsewhere he counsels judges to follow his lead. He notes ominously, “Comparative law awakens judges to the potential latent in their own legal systems.” That is, comparing the U.S. Constitution to other constitutions can show a judge how he can transform the United States. He added, “The comparison is relevant even if it is clear that the legislature was not inspired by foreign law.” After all, “comparative constitutional law is a good source of expanded horizons and cross-fertilization of ideas across legal systems.”
Apparently Kagan believes this philosophy is “advancing the rule of law.” These kinds of heroes shed new light on stray statements in Kagan’s extant writings, such as her reference to “redistribution of speech.”
A judicial activist with a contempt for the rule of law, a Supreme Court revolutionary who hated the Founding Fathers, an overexposed theoretician who has built the intellectual rigging of totalitarianism, and Israel’s Big Brother: Are these the figures our next Supreme Court justice should revere and seek to emulate?
We know she praises these four men’s jurisprudence. What we do not know is how much of it she has she adopted as her own. The nation would be better off if we choose not to find out.
Ben Johnson is the author of Party of Defeat (2008, Spence Publishing, with David Horowitz), as well as two books on Teresa Heinz Kerry’s funding of radical causes. Visit his personal website.
This article is part two of a series on Supreme Court nominee Elena Kagan. To read part one, (“Elena Kagan and Social Issues”) click here. To read part three, “Foreign Law: Coming Soon to a Supreme Court Near You,” click here.
1. Mark V.Tushnet. Making Constitutional Law: Thurgood Marshall and the Supreme Court 1961-1991. (NY: Oxford University Press, Inc., 1997), 8.
2. Tushnet, p. 7.
3. Chris Crowe. Up Close: Thurgood Marshall. (NY: Viking, 2008), 195-6. This author is aware the Miller test of obscenity quoted in that paragraph postdated Marshall’s ruling; the Supreme Court established a stronger application of these standards in 1957’s Roth v. United States case.
4. Geoffrey R. Stone, Richard Allen Epstein, Cass R. Sunstein. (Chicago: University of Chicago, 1992, 289.
5. Cass R. Sunstein and Martha Craven Nussbaum. Animal Rights: Current Debates and New Directions. (NY: Oxford University Press:, 2004), 11.
6. Cass Sunstein. A Constitution of Many Minds: Why the Founding Document Doesn’t Mean What it Meant Before. (Princeton, NJ: Princeton University Press, 2009), 188.
7. Aharon Barak. The Judge in a Democracy. (Princeton, NJ: Princeton University Press, 2006), 198.
8. Barak, pp. 199-200.