Supreme Court Nominations

Kagan Docs Reveal: Warren Court Criticism, Millionaire Status, Skadden Arps Prep


In a 1983 thesis, Elena Kagan criticized the liberal U.S. Supreme Court under Chief Justice Earl Warren for basing its rulings on social justice rather than legal principle.

The Oxford University thesis will likely help Democrats make out a case that Kagan is not a judicial activist, the Wall Street Journal reports. Kagan was 22 when she wrote the paper, according to the Washington Post, and she had not yet gone to law school, the New York Times points out. The paper was among more than 6,000 pages of documents turned over to the Senate Judiciary Committee on Tuesday.

“No court should make or justify its decisions solely by reference to the demands of social justice,” Kagan wrote in the thesis (PDF posted by the New York Times) . “Decisions should be based upon legal principle.”

Kagan’s paper focused on the exclusionary rule, applied to the states in a 1961 ruling. She said the criminal justice systems of several states evidently offended the Warren Court, but it failed to rely on a solid legal foundation to implement change.

“Judicial opinions may well appeal to the ethical sense—but this alone is not enough,” she wrote. “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.”

The documents also revealed:

• Kagan had a net worth of almost $1.8 million as of Jan. 1, compared to more than $1 million reported last year. The Washington Post concludes that Kagan apparently sold her home in Massachusetts, because she no longer has a mortgage or other debt. She had almost $740,000 in cash in bank deposits and $824,000 in retirement funds, Reuters reports.

• The White House began contacting potential Supreme Court nominees at least a month before Justice John Paul Stevens announced his retirement. To help prepare before her nomination, Kagan met at least twice with lawyers from Skadden, Arps, Slate, Meagher & Flom, the National Law Journal reports. The USA Today blog The Oval has an excerpt from Kagan’s questionnaire transcript with details.

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