Federal Courts and Nominations

Do Elena Kagan and John Roberts actually agree?

Senate debate over Elena Kagan’s nomination will highlight the differences between liberal and conservative judicial theory.

Elena Kagan’s testimony during her Supreme Court confirmation hearings, which echoed important parts of Chief Justice John Roberts’s 2005 testimony, officially ended the heated debate over conservative “originalism” versus liberal “living constitutionalism.”


Roberts had rejected an absolutist form of originalism — the idea that judges are bound by the “original meaning” of the Constitution’s words. Rather, he endorsed a form of living constitutionalism: the idea that the Constitution’s broad terms must be interpreted in light of modern circumstances. Kagan, speaking to the Senate Judiciary Committee, echoed Roberts’s point about the Constitution’s broad terms but also declared, “We are all originalists.”


Apparently, now we’re all originalists and living constitutionalists.


The agreement between these legal powerhouses from the left and the right is important — not so much because it settles anything but because it starts something. Instead of fights over methods and labels, we should start to see debates over what the Constitution actually means.


Evidence of this shift will be apparent this week during the Senate debate about Kagan’s confirmation. Pay close attention, and you will see that the question underlying this debate is simple but profound: Do conservatives or liberals have a more compelling view of what our Constitution says and means? Are liberals right in arguing that the federal government has the power necessary to address national problems like health care? Are conservatives right in arguing that corporations have the same constitutional rights as individuals?


Are basic constitutional protections focused more on guns and the right to be free of economic regulations (the conservative position) or privacy and personal autonomy (the liberal position)?


How we got here is important to understand. Twenty-five years ago, Attorney General Edwin Meese launched what conservatives call “The Great Debate” with a controversial speech calling for the Jurisprudence of Original Intention. Meese not only endorsed originalism, but he also committed the Reagan Justice Department to an “endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment.”


This view entered the public debate during Judge Robert Bork’s Senate confirmation hearing. Bork forcefully defended originalism, while Sen. Ted Kennedy thunderously condemned “Robert Bork’s America,” in which, he insisted, decades of progressive advancements in areas like civil rights and women’s rights would be stripped away.


After Bork’s nomination failed, forests were felled to produce books and articles on the vices and virtues of originalism. Justice Antonin Scalia took the central role in defending originalism, and Justice Stephen Breyer emerged as his most vocal adversary.


Politicians have frequently echoed the terms used in this legal debate. During the 2008 presidential campaign, for example, Sen. John McCain (R-Ariz.) called for judges who “strictly interpret” the Constitution, and then-Sen. Barack Obama employed softer terms like judicial “empathy.”


But this debate actually began to turn in 2005, with Roberts’s testimony during his hearings to replace Chief Justice William Rehnquist. His words are remembered now largely for his “umpire” analogy to decision making.


But the rest of his testimony was far more interesting and important. In particular, Roberts distanced himself from Borkian originalism, saying that he did “not have an overarching judicial philosophy” and looks “at the cases from the bottom up rather than the top down.”


So much for Meese’s claim that originalism is the “only reliable guide for judgment.” More surprising, Roberts endorsed the most vital thrust of living constitutionalism. “I think the framers,” Roberts explained, “when they used broad language like ‘liberty,’ like ‘due process,’ like ‘unreasonable’ with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages.”


Kagan used virtually identical words at her confirmation hearings last month. But Kagan, even more than Roberts, emphasized the importance of relying on constitutional text and history in deciding cases. She endorsed the most vital thrust of originalism. In her words, “Sometimes [the framers] laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they say, what they meant to do. So in that sense, we are all originalists.”


So is Roberts a living constitutionalist like so many liberals? Is Kagan an originalist like many conservatives? Perhaps.


But labels matter far less than the fact that both Roberts and Kagan, in similar terms, endorsed the idea that the court should be guided by what the framers put in the Constitution.


This is a big moment — especially for liberals. The debate over judicial method — originalism vs. living constitutionalism — diverted attention from the more important question of what the text and history of the Constitution actually mean. It also diverted attention from how radical this conservative reading of the Constitution often was.


While liberals were busy trashing originalism, conservatives could lay claim both to being faithful to the Constitution and for knowing — far better than liberals, who didn’t seem to care — what it means.


No more. Kagan’s testimony indicates she is prepared to engage with conservatives directly over what the Constitution requires and allows.


Democratic senators were also on board, railing long and loud about rulings by the Roberts Court in cases like Citizens United v. Federal Election Commission, which cast constitutional text and history aside to favor the interest of corporate America over “we the people.”


Republicans, for their part, laid down their own vision of the Constitution, repeatedly questioning Kagan about her views of the federal government’s constitutional powers, suggesting that she should not be confirmed if she planned to uphold the constitutionality of the new health care reforms.


This is the debate that matters. It’s about time it began.


Doug Kendall is president of the Constitutional Accountability Center, a public interest law firm. Jim Ryan is a professor at the University of Virginia School of Law.

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