August 6, 2010
By Robert Alt and Deborah O'Malley
On Thursday the Senate confirmed Elena Kagan to the U.S. Supreme Court. Given her hostility to certain enumerated constitutional rights and her penchant for using foreign laws to rule on U.S. constitutional law, there is good reason to think she'll be well out of the mainstream as a justice.
During her hearing, Kagan refused to state her views of the Second Amendment right to keep and bear arms. The Supreme Court had just announced its decision in McDonald v. City of Chicago, the case challenging Chicago's draconian handgun ban. The Court concluded that the Second Amendment right does apply to the states, and thus states can no longer pass outright bans on the possession of handguns. Kagan acknowledged this case to be "settled law," and thus binding on lower courts, but she refused to state whether she agreed with it.
Yet her previous statements and actions may shed some light on her views.
As a law clerk to Justice Thurgood Marshall, Kagan recommended that the Supreme Court not even hear a claim that the District of Columbia's complete ban on handguns violates the Second Amendment -- a claim that recently succeeded when the court struck down that very ban in Heller v. District of Columbia. Her sole reason for denying the claim was that she was "not sympathetic."
After giving such short shrift to an enumerated constitutional right, Kagan was intimately involved in gun-control policies in the Clinton White House, working to reclassify certain hunting rifles as "assault weapons" and to ban their importation. In Kagan's notes obtained from the Clinton Library, she even lumped the National Rifle Association together with the KKK as "bad guy organizations."
Because the McDonald case didn't address what kinds of regulations a state may pass on the sale and use of guns, the Supreme Court will likely decide such issues in the near future.
Given the hostility our newest justice has shown to this right in almost all phases of her career, there is reason for concern.
Another controversial and highly relevant issue about which Kagan has given distressing remarks is the practice of judges citing foreign law. In recent years, several Supreme Court justices have increasingly looked to the laws of other nations when interpreting the U.S. Constitution -- a practice clearly at odds with the American principles of national sovereignty and self-government. In her hearing, Kagan repeatedly stated that foreign law can be used for "getting good ideas," but that it shouldn't be binding on courts.
This argument, touted by many others on the political left, is a smokescreen for what has really been occurring: judges cite foreign laws to bolster their desired policy results when our own laws do not provide the support they seek.
For example, five justices on the Supreme Court used foreign law to strike down the death penalty for juvenile murderers, stating as part of their reasoning that there is a "world consensus" against this practice. Yet there is also an almost unanimous "world consensus" against the exclusion of illegally obtained evidence in trials -- a practice that the Supreme Court has imposed on all 50 states.
The Court has articulated no principle to guide their cafeteria-counter approach to citing foreign laws, and neither has Kagan. Yet, given the admiration she has for other judges who have embraced this pernicious practice, there is good reason to believe that she too will seek "good ideas" from foreign nations when those ideas support her policy preference.
Thirty-seven senators voted against her based upon concerns that she lacks experience and fears that she would be an activist. The coming terms will let us know if those fears were justified.
Robert Alt is Deputy Director of the Center for Legal and Judicial Studies at the Heritage Foundation.
First appeared in The Detroit News
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