The Principles of Elena Kagan

>There's been a lot of attention this week on Elena Kagan's 1983 master's thesis, a critique of the liberal Warren Court's methods, although not necessarily its outcomes.

One passage that jumps out is her assertion that "if a court cannot justify a legal ruling in terms of legal principle, then that court should stay its hand."

It's hard to argue with that. But you have to wonder whether the current Kagan would agree with her younger self when it comes to the most headline-grabbing victory for the Court's liberals this term, which is expected to wind down by about June 28. That also happens to be the first day of Kagan's Senate confirmation hearing, unless the schedule slips.

The case is Graham v. Florida. Earlier this week, the Court's four liberals and sometimes-liberal Justice Anthony Kennedy struck down laws in 37 states and an act of Congress that allowed for sentences as severe as life without parole for juveniles whose crimes did not include homicide.

Stripped to its essence, the decision was based on little more than the personal policy preferences of the five majority justices -- preferences with which I happen to agree.

But policy preferences are not constitutional commands. Not unless you subscribe to what the late, liberal lion William Brennan used to call the "rule of five." As Justice Brennan explained it to law clerks, "If you have five votes, you can do anything you want around here."

So where would Kagan have come down in Graham? You might imagine from her resume that she would have voted with the liberal majority. But consider that passage, and others, from her 134-page master's thesis. She wrote it while in her early 20's, studying at Oxford University after graduating from Princeton and before entering Harvard Law School.

The thesis implies that Kagan shared the Warren Court's liberal values and policy goals. And she wrote that "it is not necessarily wrong or invalid" for judges to "try to mold and steer the law in order to promote certain ethical values and achieve certain social ends." But her major point was that in order to justify judicial review, to "stand the test of time," and to avoid being overruled by future justices, the Court's decisions "must be plausibly rooted in either the Constitution or another accepted source of law," and that "no court should make or justify its decisions solely by reference to the demands of social justice."

Kagan faulted the Warren Court specifically for failing to come up with "a tenable legal argument" for its "spectacularly confused" 1961 decision in Mapp v. Ohio. That's the case in which the Court extended to the states the so-called exclusionary rule that an earlier Court had created to block federal prosecutors from using illegally obtained evidence. Subsequent courts, wrote Kagan, "could not have weakened the exclusionary rule so easily had its predecessor buttressed the rule with a well reasoned and constitutionally based rationale."

"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 added. "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."

Indeed, she wrote, under Chief Justice Earl Warren, in a range of cases, "the Court asserted its right to no less than lead the nation. Essentially, the Warren Court lacked faith in the ability of the president, the Congress or the state legislatures to guide America in the proper direction."

Now consider Kennedy's majority opinion in Graham. He began with precedents holding that the way to decide whether penalties are unconstitutionally "cruel and unusual" is to assess them by "the evolving standards of decency that mark the progress of a maturing society."

Traditionally, the justices have found violations of these "evolving standards" only if a "national consensus" exists that a particular sentence is excessive for a particular crime or class of offender.

But in this case, Kennedy's bald claim that "a national consensus has developed against" a life-without-parole sentence for any juvenile, ever, was transparently false.
Until recent years, the Court looked mainly to state and federal legislation for evidence of a national consensus. But in this case, as Kennedy had to admit, the federal government, 37 of the 50 states, and the District of Columbia all authorize life-without-parole sentences for some non-homicide offenses by persons under 18 as well as by adults. He might also have noted that in recent decades standards have evolved toward more -- not less -- severe punishment of juvenile offenders.

This shows that we are far closer to having a national consensus in favor of -- not against -- life without parole for non-homicidal juveniles in extreme cases, as Justice Clarence Thomas argued in dissent.

But Kennedy, determined to manufacture a phony "consensus" matching his own policy preference, brushed quickly past the conclusive legislative evidence and stressed that in practice, life-without-parole sentences for non-homicidal juveniles are "most infrequent."

True. But Thomas again slam-dunked Kennedy's illogic: "That a punishment is rarely imposed demonstrates nothing more than a general consensus that it should be just that--rarely imposed." As an example of a case that might qualify, Chief Justice John Roberts, in a separate opinion, cited a 17-year-old who had beaten and raped an 8-year-old girl before leaving her to die under 197 pounds of rock in a recycling bin in a remote landfill. (She lived.)

Kennedy's final prop was to declare that the justices' "judicial exercise of independent judgment" -- a euphemism for their personal policy preferences -- called for striking down the laws of 37 states and the federal government.

In justifying this judicial fiat, Kennedy quoted social science evidence about juveniles' immaturity and looked abroad for the "consensus" that so plainly does not exist in the U.S. Most other nations, Kennedy stressed, have abolished life-without-parole sentences for non-homicidal juveniles. And this, he added coyly, was "not irrelevant" to interpreting the Constitution.

That would be the United States Constitution.

But didn't Justice Sonia Sotomayor, who joined the Kennedy opinion, testify at her confirmation hearing last year that "American law does not permit the use of foreign law or international law to interpret the Constitution?" Yes, she did. That testimony now appears to be inoperative.

The Thomas response to the majority's "independent judgment" power grab, which it had used previously in striking down some death penalty laws, was that "I am unwilling to assume that we, as members of this Court, are any more capable of making such moral judgments than our fellow citizens."

The bottom line, as UCLA law professor Eugene Volokh wrote in his Volokh Conspiracy blog, is that the justices in Graham were "applying their own views of what society should do, and then trying to add an objective sheen to those views by talking about impersonal 'evolving standards of decency,' social change, accumulating knowledge, and reason and experience."

Would the young Kagan have thought -- or could the current Kagan think -- that Graham was any more "plausibly rooted in . . . the Constitution" than the liberal Warren Court decisions that she criticized in her master's thesis? It's hard to see how.