The Supreme Court nominee embraces judicial activism and “the living Constitution.”
During her Senate hearings this week, Supreme Court nominee Elena Kagan confirmed, beyond any doubt, that she is indeed the leftist which most objective observers have always known her to be. In one of her more remarkable assertions of the week, Kagan denied that the late Thurgood Marshall, whom she identifies as one of her heroes, could properly be described as an “activist” judge. Yet this was the same Thurgood Marshall who advised judges to “do what's right and let the law catch up”; who said that the U.S. Constitution, “as originally drafted and conceived,” was “defective” and thus in need of fundamental change; and who, in a defense of affirmative-action policies, once told William O. Douglas, “You [white] guys have been practicing discrimination for years. Now it's our [blacks'] turn.” For whatever merits Marshall may have had as a civil-rights crusader and a jurist, he was clearly an activist on the bench.
It is noteworthy that Kagan, on other occasions, has approvingly cited Justice Marshall's assertion that the Supreme Court must “show a special solicitude for the despised and the disadvantaged.” That perspective is entirely consistent with President Obama's view that a Justice, first and foremost, should have “the heart, the empathy, to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old.” Such a mindset dovetails seamlessly with judicial activism, where courts – unfazed by the letter of the law – dole out preferential treatment to the “have-nots” and impose retributive justice on the “haves.” It was precisely this type of activism that Obama countenanced when he called the Constitution “not a static but rather a living document [that] must be read in the context of an ever-changing world.”
During her Senate hearings, Kagan candidly echoed Obama's notion that the Constitution cannot be interpreted strictly by the “original intent” of its framers. “The constitutional law that we live under does develop over time,” Kagan said. “In [some] cases, the original intent is unlikely to solve the question, and that might be ... because we live in a world that’s very different from the world in which the framers lived.” Rejecting the strict-constructionist philosophy of such sitting justices as Antonin Scalia and Clarence Thomas, Kagan also criticized Chief Justice John Roberts’ contention that a Supreme Court Justice’s job is “to call balls and strikes” like an umpire, rather than to try to dictate the course and outcome of the proverbial game.
Kagan's anti-constructionist view set the stage for a moment of considerable tension when Senator Jeff Sessions (R-Alabama) asked whether the nominee would describe herself as a “progressive” or a “legal progressive” in the mold of President Obama. Kagan declined to answer the question directly, even claiming at one point to be unclear as to the meaning of the latter term.
It is not credible, however, that Kagan is unaware that progressivism, since its earliest days, has viewed government as an “evolving” and “living” entity, which, like all living things, must constantly adapt to changing circumstances. Indeed it was progressives who coined the term “living Constitution,” connoting the idea that the U.S. Constitution is a malleable document with no permanent guiding principles – a document that must, of necessity, change with the times.
In the progressive worldview, the proper role of government is not to confine itself to regulating a limited range of human activities as the founders stipulated, but rather to inject itself into whatever realms the times seem to demand. Progressives reason that although America's founders felt it necessary to limit the power of government because of their experience with King George III, government today no longer represents the type of potential menace it once did; rather, progressives see government as being capable of solving an ever-greater array of societal problems – problems the founders could never have envisioned. Consequently, they call for an ever-more activist government whose intrusion into, and regulation of, people's lives is properly determined not by the outdated words of an anachronistic Constitution, but by whatever the ruling elite deem necessary at any given time. By logical extension, this translates also into a call for an activist Supreme Court that is empowered to create, rather than merely interpret, law – always under the righteous banner of social justice.
According to R.J. Pestritto, author of American Progressivism, the early progressives “detested the Constitution, which places permanent limits on the scope of government and is structured in a way that makes the extension of national power beyond its original purpose very difficult.” Thus the progressives' mission was to move beyond the principles laid out by the founders. They have continued that tradition to this day. Elena Kagan, poised to sit on the Supreme Court for perhaps two or three decades, is a vitally important part of it.