SCOTUS Nominee Kagan & Thurgood Marshall, Birds of a Feather

SCOTUS Nominee Elena Kagan doesn't have much of a paper trail, having never been a federal judge. This doesn't mean we have no insight on how she would interpret the US Constitution.

As a former clerk to Associate Supreme Court Justice Thurgood Marshall it may be rightly inferred that Kagan agrees with, and has in fact never tried to distance herself from his views on judicial activism. Marshall said:

"You do what you think is right and let the law catch up." Stanford Law Review, summer 1992

This is the same Marshall that was known for being lazy, skipping deliberation to watch "Days of our Lives". He once told his friend Justice Brennan that there was a "lot to be learned about life" from soap operas. Apparently not so much about law was to be learned from the US Constitution.

Kagan has already shown her own willingness to invalidate the plain meaning of texts in her time at Harvard. As Dean of Harvard Law School in 2004 and 2005 she gave two professors (Larry Tribe and Charles Ogletree) a smack on the wrist when they were outed for plagiarism. Well no, not even that. Kagan said "Nevertheless, we regard the error in question as a significant lapse in proper academic practice." Any student would have been suspended at the very least, if not expelled, as per Harvard's written policies. Tribe and Ogletree were not suspended or fired, as leftist lawyers they are above such rules in Kagan's world.

Kagan will not interpret the Constitution as written nor even try to, but will in fact do all in her power to make it a nullity as she legislates from the bench in order to push an ideology that would never be accomplished by legal means through the legislature.

My Favorite Books (Part 1) - A Conflict of Visions by Thomas Sowell

A Conflict of Visions: Ideological Origins of Political Struggle, Thomas Sowell

"Extraordinary on several counts...There is nothing tendentious or one-sided about his argument... He makes his case fairly, lucidly, and persuasively."  The New York Times Book Review

You see things; and you say "Why?" But I dream things that never were; and I say "Why not?"
The Serpent in "Back to Methuselah" by George Bernard Shaw.


Here we have the concise difference between two opposing visions. The constrained and unconstrained visions are the basis for all political conflicts in the West for the last 200 plus years.

Sowell is one of my favorite authors. He was written many books, and in others he does take sides in the argument, but in this his goal is to explain how we have come to the argument, and why it is that almost no matter the subject, the same people end up on opposite sides. When we talk about "justice" or "equality" or "power", we may be using the same words, but with very different internal meanings.

Why do those on the left and right seem to be arguing not against the other but past each other?

Sowell's thesis is that prior to paradigms, world-views, theories or any rationally articulated models there is an underlying vision, defined (quoting Joseph Schumpeter) as a “pre-analytic cognitive act”. Sowell further defines a vision, “It is what we sense or feel before we have constructed any systematic reasoning that could be called a theory, much less deduced any specific consequences as hypotheses to be tested against evidence." A vision, according to Sowell, is our sense of how the world works and of reality and causation.

Visions are a sense of the possibilities of human reason and power to act purposefully to achieve desired ends and are broadly defined by Sowell as Constrained and Unconstrained.

Appreciation of the role of visions in shaping worldviews can help make sense of opposing views for those who disagree and shows us that opposing views are not capriciously chosen or necessarily stemming from ulterior motives, but are internally self-consistent within the framework of the underlying vision.

Sowell discusses this book in a series of interviews here:
(Part 1).
(Part 2)
(Part 3)
(Part 4)
(Part 5)