Kagan’s Moment in the SUNstein

As Alanis Morisett would say, “Isn’t ironic doncha think?” that every ideological liberal in Chicago is intertwined in some shape or form? Well, Elena Kagan is no different. I think we need to come up with a new 6 degrees of separation game; Kevin Bacon is getting old anyhow.

Since Sunstein may be the driving force behind many of Obama’s decisions, I could only note his views on the Supreme Court within his own essay, “The Myth of the Balanced Court,” where he contends that the so-called liberals that exist on today’s Supreme Court are not really liberal but moderate, and those who are considered to the right, are radically to the right. In Sunstein’s mind, although past liberal justices may not have acted appropriately when interpreting the constitution or legislation, they were at least liberal. Sunstein wants more liberal judges on courts to combat what he sees as a far right tendency when interpreting law. I personally feel his views are radically skewed to the left mainly due to the fact that legal circles have embraced liberalism so fully, moderate looks conservative and liberal looks moderate, and so on.

Here’s what he thinks about Constitutionalists or those he derogatorily refers to as ‘Fundamentalists’ or ‘Originalists’:

Fundamentalist constitutional theory is based on the idea that the proper approach to constitutional law is discerning and applying the intent behind the Constitution when it was ratified in 1789, the intent behind the Bill of Rights when it was ratified in 1791 or when the Fourteenth Amendment (through which much of the Bill of Rights has been applied to the states) was adopted in 1868. This approach is most often advocated by conservatives. In particular, Sunstein associates it with a movement known as the Constitution in Exile. Proponents of that view contend that decisions dating from the 1930s have erased the original intent behind the Constitution and that it’s true meaning needs to be restored.

Sunstein views the constitution as nonexistent prior to 1925 since it would leave out minorities, women and homosexuals. He states that there is no way that a female, a homosexual or a person of color could associate or understand a 200 year old document and relate it back to the ratifier’s intent. [I take offense to that narrow-mindedness].

If one intellectual admits that they are upset that positive rights were never included in the Constitution, but that only intellectuals considered positive rights a hobby/pastime to debate and ponder, why should we not believe that one of Sunstein’s colleagues and a pure intellectual with no working experience would not feel the same? The constitution as it stands is not good enough for intellectuals, in fact it is just a major hindrance.

The explanation for America’s rejection of constitution protection for positive rights that Sunstein accepts is what he refers to as the “legal realist” argument. Sunstein posits that America’s current non-recognition of positive constitutional rights results from an unfortunate twist of fate in the 1968 presidential election. According to Sunstein’s view, had Hubert Humphrey, rather than Richard Nixon, won the 1968 election, America would have a catalog of judicially created, positive constitutional rights today. However, Nixon won the election, and he was able to use his presidential appointment power to reshape the Supreme Court and, according to Sunstein, effectively eliminate any chance of the recognition of positive constitutional rights in the near future.

Sunstein supports this thesis by noting that through its so-called “new property” cases of the late 1960s, the Supreme Court came very close to interpreting some positive rights into the Constitution. The term “new property” originated in an influential law review article by the same name written by Charles Reich. Reich defines the “new property” as the “the jobs we hold, plus benefits, credentials, licenses, public welfare and all of the other kinds of valuables that come from large organizations and government” that provide the economic security that is necessary for the exercise of liberty. Reich argues that these entitlements served the same role as land and more traditional personal property- securing the liberty of the individual-and therefore should receive a similar level of protection. Sunstein sees the post-New Deal period and the “new property” movement as evidence that Americans are not as opposed to the idea of positive rights as many have assumed. The implication of Sunstein’s legal realist explanation is that “[w]ith modest shifts in the future, parts of the second bill of rights could well be included in our constitutional understandings, and certainly in the nation’s constitutive commitments.”

Cass Sunstein believes his nudge principle applies not only in regulatory affairs, but also in law. He feels that a court could gradually become liberal by nudging decisions leftwards every so often.

Elena Kagan, may not have specifically written in terms of nudging or minimalism as Cass Sunstein describes in his book “Radicals in Robes,” but she holds the same type of liberal ideals as Sunstein and Obama. Sunstein wrote in an article on The New Republic, of which he co-edits, that Obama is a visionary minimalist.

Barack Obama is widely regarded as a visionary because of his emphasis on “change” and his soaring rhetoric, but he also has strong minimalist tendencies. In his victory speech in Iowa, Obama went out of his way to say that it is time for a president who will “listen to” those who disagree, and also “learn from” them. In The Audacity of Hope, he asks for a politics that accepts “the possibility that the other side might sometimes have a point.” In a crucial passage, he refers to “the middle-aged feminist who still mourns her abortion, and the Christian woman who paid for her teenager’s abortion.” In this way, he suggests that across one of the nation’s least tractable divides, Americans have far more in common than we tend to think.

Like all minimalists, Obama believes that real change usually requires consensus, learning, and accommodation–a belief directly reflected in many of his policies.

I don’t believe for a second what Cass Sunstein mentions above, but I do believe that what is happening behind the scenes is the gradual transformation of the United States into the “Utopia” that is envisioned by liberals. The Saul Alinsky tactics, conform to become “The Man” and enact change, and tear down traditional institutions is reminiscent of Gramsci Marxism which proposes the same route for transformation.

Elena Kagan believes in more executive powers in the government. She prefers that the executive branch regulate more than the legislative. This view would fit perfectly with both Obama and Sunstein, who believe in legislating morals, ethics, and human nature. They think that perfection (in their minds) can be regulated and the government can oversee it. Elena Kagan would fit perfectly into this mold and she would be incredibly malleable seeing as how she has had no prior judicial experience.

Both Kagan and Sunstein also lament the fact that more liberalism doesn’t exist or that socialism has failed to be implemented.

“In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness,” wrote Kagan, Obama’s solicitor general.

“Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation’s established parties?” she asked.

“Through its own internal feuding, then, the SP [Socialist Party] exhausted itself forever and further reduced labor radicalism in New York to the position of marginality and insignificance from which it has never recovered.

“The story is a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America,” she wrote. “Radicals have often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight one’s fellows than it is to battle an entrenched and powerful foe. Yet if the history of Local New York shows anything, it is that American radicals cannot afford to become their own worst enemies. In unity lies their only hope.”

Kagan brought Sunstein over to Harvard Law from Chicago in 2007 and in so doing had the following to say about him:

Introducing Sunstein before the talk, Dean Elena Kagan ’86 described him as “the world’s pre-eminent legal scholar,” one who “challenges our assumptions and changes the way we think about legal issues.” Suggesting that Frankfurter was a forebearer of what she called “Sunsteinian Minimalism,” Kagan noted that the Justice, who was sometimes accused of being too leftist, brought to the Supreme Court a strong belief in judicial restraint. “He believed more in the institutions of democracy than in the courts,” said Kagan. “He also insisted … on respect for Federalism, for the decisions of state governments.”

“Cass Sunstein is the preeminent legal scholar of our time, the most wide-ranging, the most prolific, the most cited, and the most influential,” Elena Kagan, dean of the Harvard Law School, said in a statement released yesterday.

“His work in any one of the fields he pursues – administrative law and policy, constitutional law and theory, behavioral economics and law, environmental law, to name a nonexhaustive few – would put him in the very front ranks of legal scholars,” Kagan said.

It would appear as if somebody had an idol, and how else would one better flatter their idol by exemplifying him?

America doesn’t need political ideologues on the Supreme Court, but rather those who interpret the law and are independent thinkers that have the experience and knowledge to back it up–Just being a legal wonk, a dean, connected to Democrats, Larry Summers, and Goldman Sachs isn’t enough.

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