Earlier this week, Senator Tom Coburn asked Elena Kagan if she would uphold a federal law that required every American to “to eat three vegetables and three fruits every day.” Kagan said that the hypothetical law sounds "dumb." She also reminded Coburn that Congress must enact wise legislation and that the political process is the best place to weed out irrational proposals.
This argument is a staple of constitutional law. According to established Supreme Court doctrine, unless a law infringes a constitutional right or discriminates on an impermissible basis, the Court will apply a very deferential standard of review. Liberal and conservative judges subscribe to this notion. The conflict centers around naming those moments when laws infringe protected rights or deny equal protection.
Although the notion of judicial deference is fairly established, New York Times reporter Adam Liptak lauds Kagan's approach in a recent article. Liptak, however, fails to consider the more compelling question of Kagan's views on equal protection and due process. Laws can be "dumb" and unconstitutional simultaneously.
For example, Liptak notes that Kagan views the sentencing disparity between crack and powder cocaine as a "policy" issue. That point is unassailable. But the sentencing laws also raise a question of equality, due to their racial impact. Legal scholars have long criticized the disparity, but most courts have held that the policy does not violate the Equal Protection Clause.
When Kagan worked for President Clinton, she advised her boss against eliminating the disparity, on the grounds that it would be unpopular (although Durbin says she once accepted narrowing the disparity). Now, it appears that she also believes that the Court should not undo the disparity. But the Court is often the last refuge for groups seeking protection against "dumb" -- and discriminatory -- legislation. Kagan's centrist responses would leave persons of color without a judicial or political remedy.
Deference and Rights Infringement
Justice Stewart famously made an argument for judicial deference in his dissent in Griswold v. Connecticut. Griswold established the "right of privacy" and invalidated a Connecticut law that banned the sale of contraception. The ruling was limited to married couples.
Stewart dissented and argued that the law was "uncommonly silly." Stewart said that had he been a member of the Connecticut legislature, he would have voted against the law. As a member of the Court, however, Stewart believed that he could not invalidate the measure. The law was simply a policy preference.
Justice Thomas, quoting Stewart, made the exact same argument in his dissent in Lawrence v. Texas. Lawrence, another "privacy" case, invalidated a Texas statute that criminalized same-sex sodomy. Thomas argued that the law was silly but constitutional.
Asking whether the Court can or should invalidate "silly" laws misses the point. This is clearly not the duty of courts, and Supreme Court doctrine already reflects this logic. The broader and more important question is whether silly or sound laws violate the Constitution. On the issue of substantive constitutional law, Kagan -- like others before her -- has not revealed much about her potential approach.
Durbin, however, pressed Kagan on this point -- even raising the issue of Griswold and the right of privacy. Kagan conceded that she believed the Constitution protects substantive liberty interests, but she also admitted that reasonable minds can disagree on the extent of these rights. What Kagan believes, however, remains a mystery on many issues. To her credit, however, the confirmation process does not afford candidates the opportunity to reveal their cards without partisan rancor.