Elena Kagan and the consequences of consequentialist thinking
Elena Kagan’s personal moral beliefs are quite relevant to judging her fitness to serve on the Supreme Court.
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But consequentialist moral reasoning has been gaining legitimacy since the 1930s and it began to heavily influence legal ethics after the publication of John Rawls’s “A Theory of Justice” in 1971. Rawls’s framework was widely thought to provide a rigorous justification for claims that had been made by earlier contributors to the social justice movement. (It should be noted, however, that Rawls’s framework also has important nonconsequentialist elements.)Skip to next paragraph
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Modern social justice theory explicitly calls into question the view that justice is solely a matter of equal treatment under the law, pejoratively dismissing the idea as mere “procedural justice.”
At the same time, an unequal outcome has increasingly come to be viewed as clear evidence of injustice and therefore changing such an outcome to a fairer one has come to be viewed as a legitimate way of effectuating justice. Many judges now view using their power to advance social justice as an important part of their job. This would have been unthinkable in America before the 1930s.
Do we really want the law of the land to be determined by a few judges? The proper place for consequentialist moral reasoning in American public life is in public debate and at the ballot box, not in a court of law.
Social justice – but not from the bench
The Constitution provides a mechanism for using government power to advance social justice if that is what the citizens want. That mechanism is passing new laws in the legislature. It is therefore unnecessary for judges to advance social justice by changing the law from the bench if such changes are what the citizens actually want.
If judges refuse to apply the law because they don’t like the law, they are simply circumventing the mechanism the law provides for changing the law. That is inconsistent with the rule of law and is also inconsistent with governing with the consent of the governed.
What if a judge isn’t trying to change the law but simply does not want to apply it in a particular case because he or she disapproves of the outcome that will result from doing so? This is also inconsistent with the rule of law because judges can reach very different conclusions about when and to what extent to ignore the law in an effort to effectuate a fairer outcome in a given situation. This means that the de facto laws we live under will vary by judge, which is inconsistent with the rule of law.
Someone on the Senate Judiciary committee should ask Kagan if she believes it is possible for a Supreme Court justice to make decisions that comport with social justice theory while upholding the rule of law at the same time. Her answer would be revealing. It could even serve as a “teaching moment” that begins reversing a dangerous trend in American legal education.
David C. Rose is a professor of economics at the University of Missouri-St. Louis.
Still curious about Kagan? Here are some more articles and opinion about her nomination:
- Supreme Court confirmations, as Elena Kagan saw them
- President Obama to nominate Elena Kagan to Supreme Court
- Opinion: Elena Kagan and the case for an elitist Supreme Court
- Blog: Elena Kagan: What question would you like to ask her?