Ms. Kagan, the nation’s solicitor general and President Obama’s nominee to the Supreme Court, gave an expansive view in a 1983 thesis of both the potential and the limits of the court’s ability to make change in society amid the rise of the conservative backlash against the liberal rulings of previous decades.
“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,” she wrote. “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. In following this path, the justices are likely to forget both that they are judges and that their court is a court.”
Ms. Kagan added that “social justice” must be accompanied by legal rationale. “Judicial opinions may well appeal to the ethical sense — but this alone is not enough,” she wrote. “In order to achieve some measure of permanence in an ever-fluctuating political and social order, judicial decisions must be plausibly rooted in either the Constitution or another accepted source of law.”
The thesis, which was sent to the Senate on Tuesday, was an analysis of the so-called exclusionary rule that bars prosecutors from using evidence gained illegally. Ms. Kagan was critical of a liberal ruling not for its judicial activism or its efforts to achieve a form of social justice, but because it was not more rigorously grounded in a legal foundation that would survive future attacks.
The analysis reflected the views of a nearly 23-year-old Oxford student who had not yet gone to law school, and her thinking may have evolved. Indeed, when she was made solicitor general last year, she rejected the role of courts in leading the way toward social justice. “It is a great deal better for the elected branches to take the lead in creating a more just society than for the courts to do so,” she wrote.
But the thesis does offer a window into the roots of Ms. Kagan’s legal and political philosophy that is likely to attract scrutiny during her confirmation hearings. Conservatives cite the notion that courts should consider social ends as an example of improper judicial activism. Since Ms. Kagan has never been a judge, she has fewer writings to define her theories.
The thesis was among more than 6,000 pages of documents sent to the Senate on Tuesday, including over 200 pages of answers to a questionnaire and articles, speeches and other papers requested by senators. Many of the papers were released during her confirmation as solicitor general, but both parties will spend coming days mining them for clues to her thinking.
Among issues that have arisen is her view of executive power. In summarizing a 2005 panel discussion, Ms. Kagan described as “a little bit scary” the view that “there aren’t really any legal constraints” on the president’s authority to fight terrorism.
The papers sent to the Senate indicated that the White House began contacting candidates for the Supreme Court at least a month before Justice John Paul Stevens announced he was retiring. Ms. Kagan wrote that she was first contacted by the White House counsel, Robert Bauer, on March 5. Justice Stevens did not disclose his plans until April 9.
In her answers to the questionnaire, Ms. Kagan promised that if confirmed she would not participate in any case for which she signed the government’s briefs while solicitor general. She disclosed that her net worth jumped more than $750,000 over the past year to $1.76 million, apparently the result of the sale of a home she bought in 2004.
Her thesis at Oxford and another written while an undergraduate at Princeton in 1981 provide some of the most interesting glimpses into the development of her thinking. The Princeton thesis analyzed how internal dissent splintered the socialist movement in New York City early in the 20th century, concluding that “American radicals cannot afford to become their own worst enemies. In unity lies their only hope.”
In the Oxford thesis, Ms. Kagan used the exclusionary rule to illustrate what she called “the dangers and long-term consequences of failing to provide a judicial decision with adequate support,” and took the Supreme Court under Chief Justice Earl Warren to task for “making matters worse” when it applied the rule to the states without “a tenable legal argument.”
Even as she took the Warren court to task for its inadequate legal reasoning, Ms. Kagan seemed to write admiringly of the court that, she said, “refused to confine itself” to the “largely negative and constraining role” of acting as a check against the legislative and executive branches.
“Time and time again,” Ms. Kagan wrote, “the court asserted its right to do no less than lead the nation.”