Cold Fury

Harshing your mellow since 9/01

Sitting on a Powder Kagan: Of Courts and Courtliness


In her 1983 Oxford thesis, Elena Kagan blasted the Warren Court…but not for liberal activism.

The precocious young student of Nanny State U. was mad because they were sloppy about it. Her message: ‘If you’re going to stand the Constitution on its head to coddle criminals, please dot all the “i”s and cross all the “t”s, so that criminal-coddling might endure for the Ages.’

Mary Poppins was right again: “If you say it loud enough, you’ll always sound precocious.”

Eva Rodriguez at The Compost:

As an example, Kagan analyzes the Warren Court’s opinions on the exclusionary rule, which prohibits law enforcement officers from using evidence obtained illegally. She notes that many of the court’s opinions were shabbily crafted, lacking clear and strong legal foundations. These failings made the decisions easy pickings for future, more conservative incarnations of the court.

“Future courts attempting to effect long-term change would do well not to repeat such a serious error,” Kagan wrote.

Except that “courts attempting to effect long-term change” is the serious error.

The Court has become a Super-Senate and Tony Blankley votes “Nay”:

In life, generally, honorable people play by the rules. This is particularly true in the United States Senate, which has historically defined itself by its adherence to its unique rules…

The current rules are obsolete, having come into being at a time when the federal courts had not yet been consciously politicized. Today, liberal presidents attempt to use their appointments with the intent to systematically undermine — not uphold — the Constitution. And they do so because their vision of an ever-more-statist America is inconsistent with the Constitution’s fundamental purpose: to limit the size and scope of government.

And note, this is not a case of “both sides do it,” although it is true that conservative presidents look for nominees who will support original intent, strict construction or other methods of trying to adhere to the Constitution.

Both sides don’t do it. That’s the point. That is why you cannot name a famous recent case of conservative activism, but dozens and dozens of liberal cases spring to mind.

But — and this is paramount — because liberal justices tend to seek to undermine the clear intent of the Constitution while conservative justices try to hold the line: The result is an inexorable march toward undermining the Constitution, with conservative appointments functioning as mere temporary holding actions.

As a conservative, I respect Republican senators who wish to venerate well-established traditions. But now, in the fateful spring of 2010, those senators need to consider which of conflicting traditions they intend to venerate. They can either venerate the traditional rules of confirmation or they can venerate the United States Constitution — but not both.

I introduce, as Exhibit A on behalf of this choice, the provision in Obamacare that requires every American citizen to buy a health insurance policy. When the case challenging the constitutionality of that provision reaches the Supreme Court (as about 20 state attorneys general are currently attempting to accomplish by litigation), the government will argue that it is permitted under the power of the federal government to regulate interstate commerce.

They will be forced to argue that the mere inaction of an individual American citizen is an act of interstate commerce worthy of regulation. If that proposition is upheld by the Supreme Court — then we no longer have a limited government. The government would then have the power to outlaw and punish (by fine or prison term) any American’s decision not to exercise, not to vote, not to eat four servings of vegetables a day — any human inaction would be sanctionable under the Interstate Commerce Clause — and then adios liberty.

Blankley ends with a warning:

If senators continue to honor the rules of confirmation, then they are choosing to continue the march toward the end of constitutional, limited government and will deserve whatever demise the people have in store for them. There’s a doozy of a storm brewing — and not only Democratic ships are vulnerable to sinking.

Perhaps the Righteous Brothers said it best; “You’ve lost that sinking feeling…” And that’s the problem we must fix.




"America is at that awkward stage. It's too late to work within the system, but too early to shoot the bastards." – Claire Wolfe, 101 Things to Do 'Til the Revolution

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