Portrait of the activist as a young woman

The thesis Elena Kagan wrote in 1983 as a graduate student at Oxford is now publicly available. The Washington Post touts it as being “critical of the Warren court” because Kagan argued that the Supreme Court’s development of the exclusionary rule during the Warren years was not based on a “coherent theory” and thus “assured the rule’s eventual demise.”
Kagan was probably correct on her descriptive point – the Warren court did not provide a particularly coherent theory for its approach to the exclusionary rule. Contrary to her prediction, however, the rule has not met its demise.
The Post also wants to portray Kagan’s thesis as a brief for judicial restraint. In the first paragraph of its story (by Amy Goldstein and Robert Barnes), the Post quotes Kagan as saying “no court should make or justify its decisions solely by reference to the demands of social justice.”
But Kagan’s use of the word “solely” means that, as a practical matter, Kagan is arguing against judicial restraint. Virtually no one who has practiced or studied law would argue that cases can be decided “solely” on the dictates of “social justice” without any reference to legal texts. Those who believe in judicial restraint would argue that courts should make and justify their decisions without any reference to “the demands of social justice.” Kagan’s quotation implicitly rejects that view.
Kagan had made this rejection explicit in the preceding paragraph, which the Post declines to quote:

Judges are judges, but they are also men…. As men and as participants in American life, judges will have opinions, prejudices, values. Perhaps most important, 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 thus 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.

Thus, while “no judge should hand down a decision that cannot plausibly be grounded in principles referable to an acceptable source of law,” if an outcome that comports with the judge’s view of social justice can be plausibly grounded in an acceptable source, the judge is free to adopt that outcome. He should, however, “make every effort” to explain his ruling’s grounding in that source, something the Warren court was not always conscientious about doing.
At the age of 23, Kagan thus put her finger on the underlying disagreement between liberal and conservative legal theorists. Conservative theorists typically believe that judges should put aside their views of social justice and base their rulings on the most plausible view of what the source of law says. Liberal theorists typically believe that judges should strike a balance between text and social justice–using the former to find a range of plausible outcomes and the latter to select among them.
Happily for liberal Supreme Court justices, they see mostly cases in which the two main competing outcomes are both plausible; otherwise the case would not have gotten that far. They are thus free, under the theory Kagan espoused in her thesis, to decide most cases based on their policy preferences.
Kagan also anticipated the strategy liberal theorists have used during the years since she wrote her thesis to defend deciding cases based in significant part on theories of social justice. Most of her “money” paragraph is question-begging. The law, she insisted, is designed to meet man’s needs. But does it best meet man’s needs by being interpreted without regard to the personal views of judges or by being interpreted, to the maximum extent possible, without such biases intruding?
But Kagan also argued that biases inevitably enter into judicial decisionmaking, and this is where she was in the vanguard of the left-liberal charge. For decades, liberal academics have viewed their ability to show (or plausibly claim) that this or that conservative jurist let his bias enter into a decision as a demonstration that anything goes, and should go. In fact, such a showing would demonstrate only that the conservative jurist in question conducted himself improperly.
In other words, the fact that it is impossible for judges to keep their biases from ever entering into their decisions does not mean that judges shouldn’t strive to prevent this from happening. A judicial nominee who rejects this goal should not be confirmed.
Kagan’s thesis, though, is more than a quarter of a century old. Thus, although there’s no reason to doubt that she still holds the views described above, she has plenty of room to claim that she doesn’t. I expect that, like Sonia Sotomayor, Kagan will testify that she believes judges should not decide cases even in part on their views of social justice.
It will be an edifying moment, but our satisfaction is likely to be short-lived