Thesis Is Window on Roots of Kagan’s Legal Creed

By PETER BAKER and SHERYL GAY STOLBERG, Published: May 18, 2010

Ms. Kagan, the nation’s solicitor general and President Obama’s nominee to the Supreme Court, gave an expansive view in a 1983 thesis of both the potential and the limits of the court’s ability to make change in society amid the rise of the conservative backlash against the liberal rulings of previous decades.

“U.S. Supreme Court justices live in the knowledge that they have the authority to command or to block great social, political and economic change,” she wrote. “At times, the temptation to wield this power becomes irresistible. The justices, at such times, will attempt to steer the law in order to achieve certain ends and advance certain values. In following this path, the justices are likely to forget both that they are judges and that their court is a court.”

Ms. Kagan added that “social justice” must be accompanied by legal rationale. “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 thesis, which was sent to the Senate on Tuesday, was an analysis of the so-called exclusionary rule that bars prosecutors from using evidence gained illegally. Ms. Kagan was critical of a liberal ruling not for its judicial activism or its efforts to achieve a form of social justice, but because it was not more rigorously grounded in a legal foundation that would survive future attacks.

The analysis reflected the views of a 23-year-old Oxford student who had not yet gone to law school, and her thinking may have evolved. Indeed, when she was being confirmed as solicitor general last year, she rejected the role of courts in leading the way toward social justice. “It is a great deal better for the elected branches to take the lead in creating a more just society than for the courts to do so,” she wrote.

But the thesis does offer a window into the roots of Ms. Kagan’s legal and political philosophy that is likely to attract scrutiny during her confirmation hearings. Conservatives cite the notion that courts should consider social ends as an example of improper judicial activism. Since Ms. Kagan has never been a judge, she has fewer writings to define her theories.