Elena Kagan needs to talk honestly about what Supreme Court justices really do.

The law, lawyers, and the court.
June 23 2010 12:09 PM

Constitutional Interpretation? There's No App for That.

Elena Kagan needs to talk honestly about what Supreme Court justices really do.

Elena Kagan. Click image to expand.
Elena Kagan

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.



Crying Rape

False rape accusations exist, and they are a serious problem.

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

No, New York Times, Shonda Rhimes Is Not an “Angry Black Woman” 

Brow Beat
Sept. 19 2014 1:39 PM Shonda Rhimes Is Not an “Angry Black Woman,” New York Times. Neither Are Her Characters.

The Music Industry Is Ignoring Some of the Best Black Women Singing R&B

How Will You Carry Around Your Huge New iPhone? Apple Pants!

Medical Examiner

The Most Terrifying Thing About Ebola 

The disease threatens humanity by preying on humanity.


The Other Huxtable Effect

Thirty years ago, The Cosby Show gave us one of TV’s great feminists.

Lifetime Didn’t Find the Steubenville Rape Case Dramatic Enough. So They Added a Little Self-Immolation.

Why Men Can Never Remember Anything

The XX Factor
Sept. 19 2014 1:11 PM Why Men Can Never Remember Anything
  News & Politics
Sept. 19 2014 5:19 PM Washington’s Acting Roles
Sept. 19 2014 3:24 PM Why Innovators Hate MBAs
Inside Higher Ed
Sept. 19 2014 1:34 PM Empty Seats, Fewer Donors? College football isn’t attracting the audience it used to.
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Slate Picks
Sept. 19 2014 12:00 PM What Happened at Slate This Week? The Slatest editor tells us to read well-informed skepticism, media criticism, and more.
Brow Beat
Sept. 19 2014 4:48 PM You Should Be Listening to Sbtrkt
Future Tense
Sept. 19 2014 5:03 PM White House Chief Information Officer Will Run U.S. Ebola Response
  Health & Science
Medical Examiner
Sept. 19 2014 5:09 PM Did America Get Fat by Drinking Diet Soda?   A high-profile study points the finger at artificial sweeteners.
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.