Elena Kagan and the consequences of consequentialist thinking

President Obama certainly has a right to put a liberal on the Supreme Court because liberal political tastes can be perfectly consistent with an appropriate fidelity to upholding the rule of law. But there are moral beliefs that many liberals possess today that largely conflict with upholding the rule of law.

As a result, nominee Elena Kagan’s personal moral beliefs are quite relevant to judging her fitness to serve on the Supreme Court.

Two branches of moral philosophy

Moral philosophers divide theories of morality between those that are consequentialist and those that are nonconsequentialist in nature.

Consequentialist theories of morality contend that moral propriety is determined by the consequences of actions, not the actions themselves.

Stealing, for example, is therefore deemed wrong because it harms the victim, not because it is inherently wrong to take something that belongs to someone else. For many consequentialists, justice is therefore a matter of how fair the final outcome is, not whether the process by which it was arrived at was fair. So if the final outcome of a rule, law, or policy is unequal, a consequentialist might view it as unjust on that basis alone.

A nonconsequentialist approach, however, holds that morality is rooted in principles that must be followed, even if the outcome is made less desirable by doing so. Cheating on one’s income taxes, for example, is deemed wrong even if no human is actually harmed and the money saved is given to the poor, because cheating is inherently wrong.

With respect to the law, an outcome is just if the relevant rules were followed (due process was observed); it has nothing to do with how fair or equitable the outcome is. Under nonconsequentialism, the existence of unequal outcomes is therefore not by itself viewed as unjust.

How Kagan thinks could have a big impact on your life

This is a timely issue. If confirmed, Ms. Kagan may hear a constitutional challenge to the mandatory insurance requirement of the new health-care law.

A nonconsequentialist judge would examine whether the Constitution empowers the federal government to require citizens to purchase a private good (health insurance) and make a ruling on that basis alone.

But a consequentialist judge would look beyond the law and consider the insurance mandate’s impact on society. Using this criterion, the consequentialist judge might see the mandate as a “benefit to public health” and a “compelling state interest.” Such thinking would lead to a loose interpretation of the Commerce Clause and an affirmation of an unprecedented loss of personal liberty in America.

The nature of the rule of law

Given their emphasis on following rules, nonconsequentialist theories of moral propriety comport with upholding the rule of law since laws are, at their core, rules.

There is more to the rule of law than believing that no one is above the law. Even if no favoritism is associated with how law is applied, if legal decisions are guided by consequentialist rather than nonconsequentialist moral reasoning, we still end up with a society that is ruled by men and not laws.

America is the world’s best example of a free society in large part because for the first 160 years after the signing of the Declaration of Independence, nonconsequentialist moral reasoning dominated American legal ethics.

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