Yesterday’s exchange between Elena Kagan and Sen. Tom Coburn did a fair amount to illuminate how Kagan would likely think and rule on the Court.
Discussing the appropriateness, or lack thereof, of using the laws of foreign nations as guides to construe the text of the United States Constitution, Sen. Coburn noted that Kagan had sent a letter (written just over a year ago) to Sen. Arlen Specter, in which she had stated, “There are some circumstances in which it may be proper for judges to consider foreign law sources in ruling on constitutional questions.” As Coburn held the quote up on a large poster-board for all to see, Kagan responded by referring to her role as solicitor general (to which Coburn had also referred) and to the questions she had faced at that time, replying,
You said as solicitor general I advocated the use of foreign law in some circumstances, and I do just want to make clear that what I said in those questions was that because there are justices on the Supreme Court who believe in the use of foreign law in some circumstances, that I would think it was appropriate as an advocate to argue from foreign law, or to site foreign law, in any circumstances.
However, a statement that “it may be proper for judges to consider foreign law sources in ruling on constitutional questions” cannot be explained away by saying, “there are justices on the Supreme Court who believe in the use of foreign law.” The latter is an “is” statement, the former an “ought.” One must conclude that Kagan would likely use foreign law as a basis for construing our Constitution, were she to be confirmed.
Testing Kagan’s sense of the scope of Congress’s power “To regulate Commerce…among the several States,” Sen. Coburn then wondered, as John McCormack noted below, whether Kagan thinks Congress could constitutionally pass a law ordering Americans “to eat three vegetables and three fruits, every day.” Coburn explicitly asked, “[D]oes that violate the commerce clause?” Despite having multiple chances to do so, Kagan didn’t explicitly answer.
Instead, she replied, “I think that the question about whether it is a dumb law is different from the question of whether it's constitutional. And I think the courts would be wrong to strike down laws that they think are senseless just because they're senseless.”
True enough: Judges have no business striking down laws on the basis of their finding them to be dumb, unjust, or bad policy — a notion that the Court would do well to remember (and rarely does). But federal courts have a duty to strike down laws that plainly violate the text of the Constitution. In Federalist 78, Hamilton wrote that it is judges’ “duty…to declare all acts contrary to the manifest tenor [obvious meaning] of the Constitution void.” How can one fail to say that an act telling Americans what they must eat would surpass the clear limits of the constitutional powers granted to Congress to regulate interstate commerce? Could it be that one is anticipating ruling that a requirement that Americans buy health insurance under penalty of law similarly does not surpass the limits of that power?
Even more clearly telegraphing that result, Kagan added, “It [the commerce clause] has not been applied to non-economic activities, and that’s the teaching of Lopez and Morrison, that the Congress can’t regulate non-economic activities, especially to the extent that those activities have traditionally been regulated by the states, and I think that that would be the question that the Court would ask with respect to any case of this kind.”
So, if it is economic in nature, Congress can regulate it — or so it would seem. And love Obamacare or hate it, being forced to buy health insurance is indisputably economic in nature.
Tellingly, Kagan elaborated, “I would go back, I think, to Oliver Wendell Holmes on this.” Holmes’s view, as Kagan described it, was that “if the people wanted it, it was their right to go hang themselves.”
Holmes is an apt justice for Kagan, or any likely Obama nominee, to cite. He was a “legal progressive” and an advocate of “legal realism,” a philosophy described by Karl Llewellyn, one of its leading advocates, as holding that “[a] ‘written constitution’ is a system of unwritten practices in which the Document in question, by virtue of men’s attitudes, has a little influence” (italics in original). As constitutional scholar Paul Carrese has written in The Cloaking of Power, “The legal realism of Holmes certainly makes judging more important to, indeed essentially indistinguishable from, partisan politics.”
Carrese adds, “Holmes’s skepticism about any fixed legal principle[s] yields an explicit concept of judicial legislating intended to achieve a new social and legal order, one more attuned to either current majority will or an evolutionary progress of the species. While legal pragmatists today might emphasize his occasional pronouncements on judicial self-restraint, his bold legal realism in fact envisions great judges as oracles of social and legal progress.”
That’s not what the Founders had in mind.