Missed Opportunity: What We Should Have Learned From the Kagan Hearings
By Chris Edelson
When the Supreme Court begins its 2010–11 term on October 4, Elena Kagan will become only the fourth justice named to the Court by a Democratic president since Chief Justice Earl Warren’s retirement in 1969. Republican presidents have filled 12 vacancies on the Court during that same time span. Republicans have not just reshaped the Court with their picks (as reflected in recent decisions such as McDonald v. Chicago[1]and Citizens United v. Federal Election Commision[2]),they have used confirmation hearings to reshape the very terms in which nominations are debated, especially in the 23 years since Robert Bork’s nomination was defeated in the Senate.
In his 1990 book The Tempting of America, Bork decried the practice of “political judging” by judges who make decisions reflecting their subjective preferences, disdaining neutral application of the law. Bork concluded that his own nomination failed because he dared to reject this results-oriented approach. To the extent that Bork was right about this litmus test two decades ago, the test precisely has reversed itself in 2010. Perhaps Bork was smiling when he heard then-nominee Elena Kagan agree with a chorus of Republican senators during her recent confirmation hearings that “the worst thing that you can say about a judge is that he or she is results-oriented. It suggests that a judge is kind of picking sides irrespective of what the law requires, and that’s the absolute antithesis of what a judge should be doing.”[3]a
The critique of results-oriented judging is based on a false choice: that judges, when applying the Constitution to specific cases, can either neutrally apply the Constitution’s clear commands or else illegitimately deviate from its plain meaning, substituting subjective “will” for impartial judgment. As Kagan herself suggested, “the law requires” a specific outcome but a “results-oriented judge” ignores the clear command of the Constitution, substituting his or her personal viewpoints. However, this critique depends on the existence of clear constitutional provisions that can be applied in an objective, neutral way.
The reality, as both Kagan[4] and the senators on the Judiciary Committee certainly understand, is that the Constitution is rarely so clear and objective agreement as to how to apply it is hardly so easily achieved. Grand, sweeping constitutional provisions such as the Due Process Clause, Establishment Clause, Free Speech Clause, and even the Equal Protection Clause are ambiguous. These clauses are not specifically defined in the Constitution—in fact, the Constitution does not even prescribe a specific interpretative approach for judges to use. Since Marbury v. Madison, it has been left to justices to determine constitutional meaning in specific cases that come before the Court. The fact that justices often disagree about meaning, and that the Court sometimes overrules prior decisions, does not necessarily indicate that some justices, or some decisions, are subjective and illegitimate (though some opinions are certainly better justified than others). Simply put, justices can and do disagree about what the Constitution means, especially in the context of specific cases brought before them.
The important question is, How should Supreme Court justices decide the meaning of ambiguous constitutional provisions and apply them to specific cases? As noted, the results-oriented critique asserts that there is only one legitimate way to perform these tasks, and that justices have a simple choice: They can either follow the clear commands of the Constitution, or they can decide cases based on their own subjective preferences, picking winners and losers at their whim.
As Ronald Dworkin points out, and as most first-year law students would realize, it is “ludicrous” to assert “that a judge can always decide what the law requires without calling on any moral or political convictions or any theory of social justice.”[5] However, nominee Kagan had absolutely no incentive to explain this reality: She followed the “well-trodden path,” realizing the safest route to confirmation was simply to agree with the results-oriented critique.[6] Instead of questioning the false premise, Kagan sat quietly as Senator Jon Kyl (R–Ariz.) described her mentor, civil rights giant Thurgood Marshall, as “the epitome of a results-oriented judge.”[7] Kagan ended up promising senators that “if you confirm me, you’ll get Justice Kagan, you won’t get Justice Marshall.”[8]
Though Kagan was understandably reluctant to debunk the results-oriented critique, or to defend Justice Marshall’s honor, her hearings were a missed opportunity for Democratic senators on the Judiciary Committee to explain how the Court actually decides constitutional cases.[9] Senators, unlike Supreme Court nominees, do not have the same disincentive to challenge the existing framework for talking about how justices really decide cases. In fact, Democratic senators have a powerful incentive to do so—by exposing the results-oriented judging myth, senators could make room for the next Thurgood Marshall. According to the ground rules of current debate over prospective justices, which dictate that only would-be justices who pledge fealty at the altar of objective neutrality are confirmable, the boundaries of acceptability are shifted well to the right. A Chief Justice John Roberts or a Justice Samuel Alito is defined as within the mainstream (though they have been ranked as two of the five most conservative justices in the past 75 years, just behind Justice Clarence Thomas and Justice Antonin Scalia),[10] while Marshall himself is defined as outside the mainstream.[11] Kagan is probably correct in asserting that she would not be another Justice Marshall—some observers suggest she may even move the current Court to the right.[12] It is unlikely that she will be a liberal counterweight to conservative members of this historically conservative Court, but she is about the best liberals can hope for under the current rules of engagement for confirmation hearings. It is also unlikely that a prospective justice more likely to apply Justice Marshall’s judicial philosophy—someone such as Stanford Law professor Pam Karlan or University of California, Berkeley, Law professor Goodwin Liu—could be confirmed, or would even be nominated.[13]
The first step in making room for the next Thurgood Marshall is to challenge the accepted definition of a confirmable justice, which means debunking the results-oriented judging myth. Results-oriented judging has a bad name because it sounds scary—it implies that some justices simply reach a subjective conclusion about a case, filling in the reasoning as an afterthought. But Supreme Court justices do not simply announce decisions; if they did, their decisions might, indeed, appear arbitrary. Justices customarily write opinions, often lengthy opinions, explaining their reasoning. That gives the other branches of government, the public, and future justices the opportunity to examine and critique the proffered reasoning.[14]
If by “results-oriented,” critics mean “subjective,” then all justices are results-oriented when it comes to resolving constitutional controversies. We can see subjective choices made in cases across the ideological spectrum, from McDonald v. Chicago to Brown v. Board of Education, from Citizens United v. Federal Election Commission to Roe v. Wade. It is true that there is no express constitutional right to privacy, but there also is no express constitutional command that corporations be treated as persons with free speech rights. The iconic Marbury decision can itself be described as results–oriented—Chief Justice Marshall chose an approach to judicial review that was not explicitly required by the Constitution.
Senators who would like to see a confirmation process that would allow for nominees who openly embrace Justice Marshall’s judicial philosophy should ask questions aimed at unveiling the reality that justices must often exercise judgment when deciding constitutional cases, and that this often means making choices. Retired Justice David Souter offered some ideas about how the ground rules for debate could be reset. (Not surprisingly, retired Supreme Court justices feel freer to describe what it really means to judge constitutional cases.) In a commencement address in May 2010 at Harvard, Justice Souter acknowledged the success the results-oriented model has had in dominating debate about the Court, noting a “criticism that is frequently aimed at the more controversial Supreme Court decisions: Criticism that the court is making up the law, that the court is announcing constitutional rules that cannot be found in the Constitution, and that the court is engaging in activism to extend civil liberties.” But Souter exposed the superficiality of these charges, observing that:
The charges of lawmaking and constitutional novelty seem to be based on an impression of the Constitution, and on a template for deciding constitutional claims, that go together something like this. A claim is made in court that the government is entitled to exercise a power, or an individual is entitled to claim the benefit of a right, that is set out in the terms of some particular provision of the Constitution. The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed. Once they have been determined, the facts on their face either do or do not support the claim. If they do, the court gives judgment for the claimant; if they don’t, judgment goes to the party contesting the claim. On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively.
Souter was, rather politely, pointing out the absurdity of the results-oriented critique (what he called the “fair reading model”), which assumes that constitutional judging is essentially a matter of identifying the relevant constitutional provision, applying it to the facts at hand, and then letting the case decide itself—a task that a well-designed computer program could accomplish. Souter explained that “[e]ven a moment’s thought is enough to show why [the fair reading model] is so unrealistic:”
The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.
Moreover, Souter asserted, constitutional provisions cannot be understood in isolation “because the Constitution has to be read as a whole, and when it is, other values crop up in potential conflict with [for example, First Amendment guarantees]. The explicit terms of the Constitution, in other words, can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises. . . . A choice may have to be made, not because language is vague, but because the Constitution embodies the desire of the American people, like most people, to have things both ways.” (Emphasis added.)
Retired Justice Souter was able to say what nominee Kagan could not: The results-oriented model is a fairytale that does not describe the real-world process of judging constitutional cases, a process that, in actuality, requires justices to “choose between the good things that the Constitution approves, and when they do, they have to choose, not on the basis of measurement, but of meaning.”
This is the essence of what it means to judge constitutional cases—justices must choose; they must, not surprisingly, exercise judgment. As Justice Souter observes, the Constitution presents competing values: “liberty, as well as order, and fairness and equality, as well as liberty.” The Court’s task is “to decide which of our approved desires has the better claim, right here, right now, and a court has to do more than read fairly when it makes this kind of choice.”
Different justices and different nominees to the Court have different judicial philosophies. One justice or one nominee may believe in the general rule of judicial deference to legislative decisions, concluding that the “most important questions in our democracy [are to be resolved] by citizens trying to persuade one another and then voting.”[15] Another justice or nominee may remind us, in a different context, that “the very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”[16]
Neither of these judicial philosophies can claim a monopoly on truth: the Constitution does not tell judges which approach to prefer. The first approach vindicates the principle of majority rule—that in a democracy, unelected judges ought not to thwart the will of the majority, as expressed through its elected representatives. The second approach speaks to the values of constitutional democracy, focusing on the limits the Constitution sets on majority rule and on the Court’s role in vindicating minority rights that would otherwise lose out in the legislative process. Each philosophy has its benefits and limitations, and no prospective justice should be deemed outside the mainstream for embracing either. Under the current framework enforced at confirmation hearings, however, nominees who embrace the second approach are likely to be denounced as “results-oriented,” as substituting their preferences for the clear meaning of the Constitution.
For those preferring justices who embrace the second approach, the approach Justice Marshall favored, and the approach Senator Kyl derided during the Kagan hearings as results-oriented,[17] it is imperative to expose the results-oriented critique as the myth that it is. The Kagan hearings were a missed opportunity, but senators who would like to see Justice Marshall’s style returned to the mainstream ought to be preparing for the next hearings (not that I wish any ill will to any sitting member of the Court). I have imagined a hypothetical dialogue between senator and nominee that would help expose the results-oriented myth and make room for the next Thurgood Marshall, to the extent that such a person exists.
Senator: Does the Constitution come with any instructions telling judges how to interpret it?
Nominee: Not really. The Constitution, Article III, vests the judicial power in the Supreme Court and any lower federal courts Congress chooses to create.
Senator: But does the Constitution provide judges with explicit instructions as to how they are to exercise that judicial power granted to them?
Nominee: No.
Senator: In fact, the Constitution does not even expressly assign the judiciary the power to strike down unconstitutional legislation, what we call judicial review, is that right?
Nominee: Correct, though the Court expressly recognized this authority in Marbury v. Madison.
Senator: Of course, but Marbury had to go beyond the plain language of the Constitution to reach its result, right? It had to go beyond the text to conclude that it was the Court’s unique role to decide whether acts of Congress were constitutional, right?
Nominee: Yes, you could say that.
Senator: I understand that you may not want to describe Marbury as an activist or results-oriented decision, but, in my view, it is fair to call Marbury the original results-oriented decision in the sense that Chief Justice Marshall had to make a choice, had to exercise judgment, about the best way to make the Constitution work. He decided the grand structure constructed by the Framers would fall apart unless you had someone who could say what the Constitution means in specific cases, as applied to specific laws. And Chief Justice Marshall further decided that it made the most sense for the courts to exercise this function. None of this means Marbury is an illegitimate decision. My point is only that the Court has been making conscious choices for more than 200 years when it comes to interpreting the Constitution. But I do not expect you to agree with all that, so I’ll move to another question. In exercising the function of judicial review after Marbury, the Supreme Court often has to decide on the meaning of ambiguous, but deeply important, constitutional provisions like the Establishment Clause, the Due Process Clause (or clauses), and the Equal Protection Clause, right?
Nominee: Yes, though I would argue that not every provision in the Constitution is ambiguous.
Senator: Yes, of course. But some certainly are, right? For example, Chief Justice Warren Burger, in the Lemon v. Kurtzman case, admitted that “[c]andor compels acknowledgement . . . that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law. The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment.” What did Chief Justice Burger—no wild-eyed liberal activist, by the way—mean by that?
Nominee: I don’t want to speak for Chief Justice Burger. . . .
Senator: Of course. Isn’t it fair to say, though, that Chief Justice Burger was acknowledging the ambiguity of language in the Religion Clauses, especially the Establishment Clause, which prohibits any law “respecting an establishment of religion?” That’s pretty ambiguous language, isn’t it? There’s no definition telling you exactly what those words mean, or how to apply them to specific circumstances, right?
Nominee: That’s correct, Senator.
Senator: And, without asking you which of these approaches you think is right, isn’t it fair to say that different justices have different views of what the Establishment Clause means? Some—all nine justices in Everson v. Board of Education, in fact—said it requires a wall of separation between church and state. Others think, by contrast, that it merely forbids an official state religion, and still others come out somewhere in between, concluding that the Establishment Clause permits the state to aid religion as long as it is done in a nondiscriminatory way. Different justices have held each of these views, right?
Nominee: Yes, that’s right.
Senator: Does the Constitution tell us, with certainty, which view is correct?
Nominee: No, though I think that there are ways for the Court to reach a conclusion—depending on the specific facts of the case before it, and weighing different considerations—including the need to understand the Establishment Clause’s interplay with the Free Exercise Clause.
Senator: Right, fair points. Some justices see a tension between the two clauses, while others think the religion clauses are complementary. But in deciding which approach is correct, or which of the different views of what the Establishment Clause means is correct, justices on the Supreme Court have to ultimately make a choice, right? They have to exercise judgment, which is not that surprising, I guess, for a judge.
Nominee: I think that’s right, yes.
Senator: OK, now we’re getting somewhere. Maybe we will be able to break early for lunch. So, in past hearings, we have heard some of my colleagues criticize “results-oriented judging.” They, my colleagues, argue that there are only two ways to decide constitutional cases: Either you neutrally apply the Constitution’s clear commands, or you substitute your own subjective preferences for the clear meaning of the Constitution. But, as our discussion shows, that’s not really how judging constitutional cases works, right? The problem with the results-oriented critique is that the Constitution is not always clear, and judges sometimes have to make choices among competing values, competing arguments, and competing interpretations, right?
Nominee: Yes, depending on the constitutional provision involved.
Senator: Right, of course. I guess if this were not the case, if we did not need Supreme Court justices to make judgments about the meaning of ambiguous provisions in the Constitution and their applicability in specific cases, then we could just have computers decide cases under the Constitution, right? I mean the Constitution does not rule out that, having computers decide cases?
Nominee: No, the Constitution is silent on that question. Of course computers did not exist in the 18th century. . . .
Senator: Quite right, quite right. Well, fortunately, I don’t think the time will come anytime soon anyway when computers will be doing the job of Supreme Court justices. Until then, we will have to make do with human beings, and with justices who understand their job is not mechanical. It’s not like solving mathematical problems with precise answers everyone can agree on. It’s about making choices, about considering competing values. And none of the different ways in which justices try to solve constitutional problems has a lock on legitimacy, which is not to say that all viewpoints are equally persuasive, but we will talk more about that later.
This is an artificial exercise, of course, but I think it can provide some guidelines for future hearings. As it stands right now, some nominees can openly declare their approach to interpreting the Constitution, while others cannot. Nominees who believe in theories of original intent, originalism, or literalism—any theory that promises objective, neutral results without any need for judges to make subjective choices—are considered legitimate. On the other hand, nominees who take the view recently expressed by Justice Souter, that constitutional judging simply does not work that way, run the risk of being disqualified if they have expressed that view publicly, and are forced to denounce results-oriented judging during confirmation hearings. This does not mean, of course, that it is impossible to end up with a Supreme Court justice who embraces the Souter model. Souter made it on to the Court, after all. However, the current framework for defining what makes for a legitimate nominee makes it much less likely we will end up with more Souters in the future. Souter was a “stealth nominee,” a state court judge whose views on interpreting the Constitution were not clear. But liberal nominees should not have to sneak under the radar; they should be able to express their viewpoints just as openly as conservative nominees do.
Senators who want to produce the best environment for confirming liberal justices, who will truly balance the conservative wing of this historically conservative Court, will have to take time and work to expose the results-oriented judging myth. Until then, nominees will have to follow Kagan’s lead, agreeing that the “law” is an objectively knowable, certain field of knowledge, something akin to math or science; promising clear, neutral answers; and leaving no room for a Thurgood Marshall who saw the law as requiring judges to choose between competing values based on context and experience.
If recent history is any guide, Democrats may not have frequent chances to name new justices to the Court. Senators on the Judiciary Committee should realize that the next hearings will offer an opportunity to make room for the next Thurgood Marshall, to the extent that we are fortunate enough to have a latter-day Marshall in our midst.
Lawyer Chris Edelson is an assistant professor at American University School of Public Affairs in the Department of Government.
Notes
[1] 561 U.S. ___ (2010).
[2] 558 U.S. ____ (2010).
[3] Kaufman Questions Kagan, Criticizes Pattern of "Results Oriented" Judging on Current Supreme Court, accessed August 2010.
[4] Paul Kane, Kagan Sidesteps Empathy Question, Says ‘It’s Law All the Way Down,’ Wash. Post, June 29, 2010, www.washingtonpost.com/wp-dyn/content/article/2010/06/29/AR2010062903935.html, accessed August 2010. In response to a question from Senator Jon Kyl, Kagan added some nuance to the concept that the law always requires clear results, conceding that
there are cases in which it is difficult to determine what the law requires. Judging is not a robotic or automatic enterprise, especially on the cases that get to the Supreme Court. A lot of them are very difficult. And people can disagree about how the constitutional text or precedent—how they apply to a case.
However, she suggested that, in the end, the law still provides an objective answer: “But it’s law all the way down, regardless.”
[5] Ronald Dworkin, The Temptation of Elena Kagan, The New York Review of Books, Aug. 19, 2010.
[6] Cf. Dworkin.
[7] www.washingtonpost.com/wp-dyn/content/article/201007/01/AR2010070103025; see also Dana Milbank, Kagan May Get Confirmed, But Thurgood Marshall Can Forget It, Wash. Post, June 29, 2010
[8] Ari Shapiro, Kagan Quizzed About Thurgood Marshall Record, NPR, June 29, 2010, www.npr.org/templates/story/story.php?storyId=1281955737, accessed August 2010.
[9] As Kagan herself noted in a 1995 article, “[post-Bork confirmation] hearings serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government.” In addition to the benefits I describe here, senators who challenge the results-oriented judging myth could make confirmation hearings an opportunity for interested citizens to learn something about how the Court decides cases.
[10] William M. Landes and Richard A. Posner, Rational Judicial Behavior: A Statistical Study, 1 Journal of Legal Analysis 775 (2009).
[11] www.washingtonpost.com/wp-dyn/content/article/2010/07/01/AR2010070103025_5.html. Senator Kyl charged that “Justice Marshall’s judicial philosophy, however, is not what I would consider mainstream.”
[12] See, e.g., Glenn Greenwald, “The Case Against Elena Kagan,” Salon.com, Apr. 13, 2010; Stuart Taylor Jr., “Kagan May Mean a More Conservative Court,” The Atlantic, May 10, 2010, Kagan May Mean a More Conservative Court.
[13] President Obama nominated Professor Liu to the 9th Circuit Court of Appeals, but a floor vote on his nomination was blocked. Bob Egelko, Republicans Block Bay Area Judicial Nominees, San Francisco Chronicle, Aug. 7, 2010, accessed August 2010.
[14] There are additional factors that also operate as checks on arbitrary Supreme Court decision making: (1) justices do not decide cases individually—they must convince their colleagues to join them, and (2) public opinion and reactions from the other branches of government can act as checks, as can concern for the Supreme Court’s perceived legitimacy as an institution.
[15] Planned Parenthood v. Casey, 505 U.S. 833, 979 (1992) (J. Scalia, dissenting).
[16] West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943).
[17] During Kagan’s confirmation hearings, Senator Kyl chastised the nominee for “wr[iting] a tribute to Justice Marshall in which she said that,
in his view, ‘it was the role of the courts in interpreting the Constitution to protect the people who went unprotected by every other organ of government, to safeguard the interests of people who had no other champion. The court existed primarily to fulfill this mission.’
And later, when Kagan was working in the Clinton administration, she encouraged a colleague working on a speech about Justice Marshall to emphasize his “unshakable determination to protect the underdog, the people whom no one else will protect.” As noted, Senator Kyl described Justice Marshall as “the epitome of a results-oriented judge,” and nominee Kagan had to assure the Judiciary Committee that she would not be another Marshall.
“Taking the Stand” appears periodically in Washington Lawyer as a forum for D.C. Bar members to address issues of importance to them and that would be of interest to others. The opinions expressed are the author’s own.
