Research Briefing

Elena Kagan’s College Writings Provide Early Window To Her Activist Liberal Philosophy

AT PRINCETON, KAGAN EXPRESSED A STRONG LIBERAL PHILOSOPHY

Kagan Criticized Incoming Republican Senators As “Avengers Of ‘Innocent Life’ And The B-1 Bomber.” “And then, of course, less felt but equally significant were the other races. Reagan I expected, but Symms, Abdnor, Quayle and Grassley I did not. Even after the returns came in, I found it hard to conceive of the victories of these anonymous but Moral Majority-backed opponents of Senators Church, McGovern, Bayh and Culver, these avengers of ‘innocent life’ and the B-1 Bomber, these beneficiaries of a general turn to the right and a profound disorganization on the left.” (Elena Kagan, “Fear And Loathing In Brooklyn,” The Daily Princetonian, 11/10/80)

Kagan Predicted An “American Disillusionment With Conservative Programs And Solutions” And That “A New Revitalized, Perhaps More Leftist Left Will Once Again Come To The Fore.”  “Looking back on last Tuesday, I can see that our gut response — our emotion-packed conclusion that the world had gone mad, that liberalism was dead and that there was no longer any place for the ideals we held or the beliefs we espoused — was  a false one. In my more rational moments, I can now argue that the next few years will be marked by American disillusionment with conservative programs and solutions, and that a new, revitalized, perhaps more leftist left will once again come to the fore. I can say in these moments that one election year does not the death of liberalism make and that 1980 might even help the liberal camp by forcing it to come to grips with the need for organization and unity.” (Elena Kagan, “Fear And Loathing In Brooklyn,” The Daily Princetonian, 11/10/80)

Kagan Wrote About “Real Democrats” Who Are “Committed To Liberal Principles And Motivated By The Ideal Of An Affirmative And Compassionate Government.” “Where I grew up — on Manhattan’s Upper West Side — nobody ever admitted to voting Republican. The real contests for Congress and the state legislatures occurred in early September, when the Democratic primary was held. And the people who won those races and who then took the November elections with some 80 per cent of the vote were real Democrats — not the closet Republicans that one sees so often these days but men and women committed to liberal principles and motivated by the ideal of an affirmative and compassionate government.” (Elena Kagan, “Fear And Loathing In Brooklyn,” The Daily Princetonian, 11/10/80)

• Kagan: “Perhaps because of this background, I absorbed such liberal principles early; more to the point, I have retained them fairly intact to this day.” (Elena Kagan, “Fear And Loathing In Brooklyn,” The Daily Princetonian, 11/10/80)

Kagan’s College Thesis Was On The Socialist Movement, “Revealing Sympathies With The Socialist Party.” “Under Wilentz’s direction, Kagan spent her senior year conducting research for her thesis on the history of the socialist movement, which was titled ‘To the Final Conflict: Socialism in New York City, 1900–1933.’ Her thesis has been criticized by her opponents for revealing sympathies with the Socialist Party and became a source of controversy when she was a potential nominee for Associate Justice David Souter’s seat on the Supreme Court last spring …” (Ameena Schelling, “Reserved Passion,” The Daily Princetonian, 5/3/10)

Kagan Wrote Of “Socialism’s Greatness” Calling The Socialist Movement’s Demise “A Sad But Also Chastening One For Those Who, More Than Half A Century After Socialism’s Decline, Still Wish To Change America.” “‘Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness,’ she wrote in her thesis. ‘Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation.’ She called the story of the socialist movement’s demise ‘a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America ... In unity lies their only hope.’” (Ameena Schelling, “Reserved Passion,” The Daily Princetonian, 5/3/10)

• Kagan’s Thesis Described Her Brother’s “Involvement In Radical Causes” Which Led Her “To Explore The History Of American Radicalism In The Hope Of Clarifying [Her] Own Political Ideas.” “Kagan said in her thesis acknowledgements that her brother’s “involvement in radical causes led me to explore the history of American radicalism in the hope of clarifying my own political ideas.” Yet even if a deeper understanding of the Socialist movement helped Kagan understand her own beliefs, she did not follow her brother’s path.” (Ameena Schelling, “Reserved Passion,” The Daily Princetonian, 5/3/10)

As Editorial Chairman Of The Daily Princetonian, Kagan Argued Against Draft Registration, Calling It “A Manifestation Of A Growing Militarism.” “At stake is not simply the adoption of Carter’s proposal — although it is, in itself, something we deeply oppose. After all, the rally is not just for the 19- and 20-year-olds recently pinpointed for registration. We should also demonstrate against the proposal because it is a manifestation of a growing militarism in which politically motivated bravado plays too large a part.” (Editorial, “Rally At Noon,” The Daily Princetonian, 2/12/80)

• Kagan Criticized Proposal As Sign Of “Militaristic Identity The Country Was Headed Toward.” “One set of unsigned editorials published in the spring of 1980, written in response to the federal government’s discussion of reinstating draft registration, attacked the militaristic identity the country was headed toward. The nation was ‘unfortunately’ moving toward ‘an era in which myopic and over-sensitive “national pride” precludes the thoughtful search for alternatives to an unnecessary draft registration,’ it said.” (Ameena Schelling, “Reserved Passion,” The Daily Princetonian, 5/3/10)

AT OXFORD, KAGAN EXPRESSED HER TRUE LEGAL MANTRA: DECIDE FIRST, JUSTIFY LATER

Kagan Wrote It “Is Not Necessarily Wrong Or Invalid” For Judges To “Mold And Steer The Law In Order To Promote Certain Ethical Values And Achieve Certain Social Ends.” “As men and as participants in American life, judges will have goals. And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid. The law, after all, is a human instrument – an instrument designed to meet men’s needs….Concern for ethical values has an important role to play in the judicial process. For in the last analysis, the law is a very human enterprise with very human goals.” (Elena Kagan, “The Development And Erosion Of The American Exclusionary Rule: A Study In Judicial Method,” Oxford University, p.120, 4/20/83)

• Kagan Suggested That In Order For Opinions That “Appeal To The Ethical Sense” To Have “Some Measure Of Permanence” They Needed To Show They Were “Plausibly Rooted” In The Law. “Judicial Opinion may well appeal to the ethical sense – but this alone is not enough. In order to achieve some measure of permanence in an ever-fluctuating political and social order, judicial decisions must be plausibly rooted in either the Constitution or another accepted source of law. Such decisions furthermore, must be buttressed by thorough argument, powerful reasoning, and careful logic. When opinions are not thus supported, they become vulnerable to modification or reversal. In its exclusionary rule cases, the Warren Court appeared not to recognize this crucial fact. Future courts attempting to effect long-term change would do well not to repeat such a serious error.” (Elena Kagan, “The Development And Erosion Of The American Exclusionary Rule: A Study In Judicial Method,” Oxford University, p.122, 4/20/83)