The confirmation hearings of Supreme Court nominee Elena Kagan begin Monday, and court watchers are steeling themselves for another round of the vacuous Q&A that has become the stuff of modern confirmation hearings. It's a tedious process that has been widely and rightly criticized—most notably by Kagan herself. Kagan the Academic wrote a piece in 1995 urging nominees to openly discuss their views on substantive law. Kagan the Nominee, on the other hand, probably thinks that the less she says about real legal issues, the better the odds that she'll soon be donning a new black robe. The belief that it's career suicide for a nominee to talk about any actual cases is a dubious one, but sadly it's prevalent enough that such a discussion is unlikely.
What she will likely talk about—if she's anything like other recent nominees—is that, if confirmed, she promises to become Kagan the Robot. She will find 100 different ways to assure us that when deciding cases she will do nothing more than mechanically apply the law to the facts. And this is where Kagan needs to throw away the script. The absence of any dialogue on substantive law at these hearings is regrettable, but the political theater of discussing judging as mere law-to-fact application is truly alarming in that it goes to the heart of the public's understanding of what it is Supreme Court justices actually do. That's why Kagan needs to talk to the American people honestly next week about the job for which she is applying and why she is so qualified to get it.
In a speech at Harvard last month, former Supreme Court Justice David Souter boldly declared the obvious: Constitutional interpretation is complicated. Souter waited until after his Supreme Court career was over to start this conversation, but Kagan should have it with us right from the beginning. Over the last few decades, Americans have been repeatedly fed a line about judging in which the "law" is something that can be looked up in a big book, then applied to cases with precision. This tale is now endlessly told about constitutional interpretation. In his last State of the Union address, former President George W. Bush declared that "the Constitution means what it says." The Constitution certainly might mean what it says, but the problem is that it says frustratingly little and what it does say is often unclear.
The easy cases, of course, rarely make it to the Supreme Court. It is the difficult cases the justices chiefly face—the ones in which the text can be read multiple ways, the precedent is ambiguous, the facts are novel, and the values conflict. Add to this mix 200 years of precedent and a constantly changing world, and the calculus becomes all the more convoluted. Supreme Court justices are the nine people upon whom we have bestowed the vital role of finding and connecting the dots between all of these numerous considerations. Each justice is equipped with the same bag of traditional interpretative tools: text, history, precedent, and facts. (No sincere justice includes personal whims and biases in that collection, although the honest ones concede that this is a struggle.) It is then up to the individual justice to determine which tool to use and how to use it. The idea that constitutional text snaps perfectly onto the facts of each case is an attractive one. In real life, it happens almost never.
The court's 2008 case of District of Columbia v. Heller is an example of the limits of the "it means what it says" approach to constitutional analysis. Regardless of your personal feelings on individual gun ownership, a candid reading of the Second Amendment reveals that the sparse 27 words of text are just not that clear. What does it mean to "keep and bear Arms"? What is a "well regulated Militia" and what does it have to do with "the right of the people"? And, seriously, what's with all the commas? The justices had a crazy hard task in front of them when they set about parsing the amendment for the first time in decades, and so they did what justices do—they tore apart the text and examined every word. When that failed to clarify matters, they all turned to history in an attempt to decipher what these phrases meant at the time and what the drafters thought they were saying. They reread prior court cases and considered whether the reasoning of past justices made as much sense in this case. They thought a bit about how Americans use guns both then (mostly to hunt grizzlies, according to Justice Kennedy) and now (mostly to shoot one another, according to Justice Breyer). And in the end, they took 157 pages to explain to us that they completely disagreed, by a score of 5-4, about both what the Constitution says as well as what it means.
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Happy Constitution Day!
Too bad it’s almost certainly unconstitutional.