Justice Kagan, Please be a Judicial Activist


With yesterday’s Senate vote in the books, Elena Kagan has finally passed through the confirmation gauntlet and earned the title of Justice. Now she has some time to take a breather and ponder the role of the court that she will help guide for the next two decades or more. Based on her recent statements, she believes the judiciary should almost always defer to the other branches. Justice Kagan should reconsider that stance.

No matter which party is in power, Congress and the White House sometimes go too far with the laws they make. The PATRIOT Act, the health care bill’s insurance mandate, McCain-Feingold, and more all violate various sections and clauses of the Constitution. Now more than ever, the judiciary needs to take an activist stance and strike down unconstitutional legislation whenever it comes before the court.

This does happen occasionally. When the Supreme Court struck down provisions of McCain-Feingold on First Amendment grounds in the Citizens United case, it made headlines for weeks. Left and right were both astonished that the court stood up to the legislature and said, “no.”

What a sad commentary that the court performing its proper function is an unusual enough occurrence to be front-page news. Such stories should be routine. The reason the court exists is to check the other branches’ excesses.

It will be a long time before they are. There is a reason why the Supreme Court is filled with justices eager to defer to the political branches. It’s because the political branches get to pick who sits on the bench. No president would nominate a judge who might nullify his administration’s signature achievements. No senator would vote to confirm a judge who might strike down an important bill that she wrote. There is a selection bias favoring judicial passivists.

This problem is bipartisan. Conservative justices like Clarence Thomas have rightly been called “fair-weather federalists” by constitutional scholars in the wake of cases on national security and the drug war. No wonder legal scholar Randy Barnett told The Wall Street Journal that “If I want to bet actual money, I’ll always bet the court upholds anything Congress does.”

Justice Kagan was picked because she is likely to continue the Supreme Court’s bipartisan tradition of judicial passiveness. As she told the Senate Judiciary Committee:

“I would go back I think to Oliver Wendell Holmes on this. He was this judge who lived in the early 20th Century— hated a lot of the legislation that was being enacted during those years but insisted that if the people wanted it, it was their right to go hang themselves. Now, that‘s not always the case but there is substantial deference due to political branches.”

Kagan also refused to say she would strike down a hypothetical law mandating that people eat their vegetables. With rhetoric like that, it is surprising her confirmation vote was as close as 63-37.

What would have happened had she quoted instead from the famous Marbury v. Madison decision of 1803? In that case, Chief Justice John Marshall asserted the Court’s authority to strike down unconstitutional laws. “It is emphatically the province and duty of the Judicial Department to say what the law is,” he wrote in the decision.

Justices who think as Marshall did have roughly a snowball’s chance in Hades of getting confirmed.

Justice Kagan was nominated and confirmed because of her judicial passivism. But now that she’s in, she’s in for life. She can stand up for the judicial branch if she wants to. If a case comes before her involving a law that is clearly unconstitutional, her rightful duty is to strike it down.

As she ponders her new responsibilities, she should consider the wisdom of Chief Justice Marshall. The Supreme Court badly needs a dose of judicial activism. That doesn’t mean legislating from the bench. It means saying no when Congress and the president go too far. As Justice Kagan prepares for her first term, she should practice saying it.