Kagan criticized the Warren Court

[usregimechange]

From the AP article released today:

AP Photo/Manuel Balce Ceneta

She criticized the Supreme Court under Justice Earl Warren's leadership for poorly reasoned rulings on criminal law, writing that decisions "should be based upon legal principle and reason." Instead, she suggested the Warren court was intent on reaching certain conclusions "to correct the social injustices and inequalities of American life" - even if it meant taking legal shortcuts to get there.

http://hosted.ap.org/dynamic/stories/U/US_KAGAN_IN_HER_WORDS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT

First, I would like to note that this view does not place her outside of Obama's view or what scholars have called "democratic constitutionalism." This has been defined to stress "that courts should pursue many of the same social-justice ends that the Warren Court sought to advance, only using more modest, less uniformly activist means" and in a way that considers the legislative process and the enforcement of laws to be the front line in that battle (NYT, 2009).

Personally, I think those advocating this view, including Obama, have allowed the misconceptions peddled by conservatives to enter into their reasoning verses disputing the premise that those misconceptions are based on to begin with. It was not "judicial activism" to consider segregation to be a violation of the Constitution and to strike it down, it was correct.

[robinlynne]

1. hell yes. (to the poster)

[Radical Activist]

2. That might be the right argument to combat a conservative activist court.

Someone who forces the conservatives to defend whether their opinions are well grounded or simply pursuing their own agenda might be exactly what the court needs right now to pull it left. I wonder if that's a reason why Obama picked her.

[usregimechange]

5. It might be the right approach to get Kennedy on board but until the composition of the court ...

changes, the left bloc can't do combat unless its writing dissents. Part of me prefers the dissents.

[elleng]

3. There's more on her views, as to Bush/Gore, posted today (somewhere.)

She's THOUGHTFUL!

Here:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x4388595

In Bush/Gore, Court was affected by politics and policy.

[Karmadillo]

4. "legal principle and reason" LOL

"The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

[Unvanguard]

10. That's exactly correct, and it's part of why entrusting social reform to the judiciary is silly.

Constitutional law is necessarily a formal, legalistic process, that neglects the material injustice that can accompany perfectly-constitutional statutes.

[usregimechange]

12. I view it as bringing law in line with the social reform that the Constitution already demands

in each new legal context (e.g. the Constitution already demands the application of Equal Protection to gay marriage).

[Unvanguard]

15. We need to be careful about that "it."

It is certainly true that courts should be willing to implement social reform demanded by the Constitution, and same-sex marriage, clearly mandated by the Equal Protection Clause and by Supreme Court precedent guaranteeing a right to marriage, is an excellent example of where that principle should be applied.

But as the Anatole France quote Karmadillo posted illustrates, legal principles like "equal protection" only go so far in ensuring social justice broadly conceived. They mandate same-sex marriage, but they do not bring us any closer to providing decent aid and protection to LGBT homeless youth; they overthrew racial segregation, but they did not end the de facto system of racial stratification in this country; they protect the formal due process rights of all citizens, but they do not meaningfully ensure that the poor have adequate legal representation; they ensure that the rich and poor have the same nominal legal rights, but do not address the fact or the social consequences of the immense material inequality that pervades the US.

They are not so circumscribed because of excessively-limited conservative interpretations: they are so circumscribed because the Constitution on any reasonable interpretation does not provide for that kind of reform, and should not, because such reform extends beyond the scope of things we should let judges insulated from the public decide.

Accepting the limits of the judiciary to implement progressive reform is not opposition to progressive reform: it is recognition of the reality of what the law is, and how far it can reasonably go.

[usregimechange]

6. When I write positive views of Kagan I get unrec'd, when I write negative views I get unrec'd

At least we are consistent.

[Karmadillo]

7. Is she OK with the Burger and Rehnquist courts? They sure didn't take shortcuts "to correct the

social injustices and inequalities of American life."

[Unvanguard]

8. Nobody is objecting to Brown v. Board.

The Warren Court decided a whole host of important cases.

[usregimechange]

9. Why not? Because it is now a popular form of "judicial activism?

It did overturn precedent and legislation.

[Unvanguard]

11. The issues here are not a binary choice of "more judicial activism" or "less judicial activism."

Without looking at the piece of Kagan's writing discussed in the article, or at an analysis more extensive and detailed than the one in the article, I can't say exactly what her position is, but there's nothing at all incoherent about saying that Brown was well-reasoned and correctly-decided, while some Warren Court criminal procedure cases were not.

[usregimechange]

13. If that is the argument but I think they avoid Brown because it was so clearly correct and popular

and wouldn't dare use their trusty label on desegregation through judicial intervention.

[Unvanguard]

16. Well, jurisprudential conservatives like activism in cases beyond Brown.

Witness their overturning of affirmative action policies, campaign finance reform, and what they see as federal government extension beyond its enumerated-power limitations.

I guess I'm not entirely sure what your point is.

[usregimechange]

17. I think we have the same point, that the use of the label "judicial activism" is selective

[amborin]

14. she hired 2 Federalist Society members: Goldsmith & Manning

[laughingliberal]

18. ...

:(

[troubledamerican]

20. whoops

[struggle4progress]

19. Who cares what she thought about the Warren Court at age 23, before she had any legal training

or experience?