Bench Memos

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Elena Kagan’s “Vacuity and Farce”—Part 3


Senator Cornyn’s first question (1.a) to SG nominee Elena Kagan was “Do you believe that there is a federal constitutional right to same-sex marriage?”  Kagan’s entire response: “There is no federal constitutional right to same-sex marriage.”


I see two ways to read Kagan’s response. Perhaps Kagan means merely, “The Supreme Court, as of the time I’m writing this response, has not recognized a federal constitutional right to same-sex marriage. Therefore, there is no such right as of now.” If that is her meaning, it’s troubling in two respects. First, Kagan’s actual response leaves her vulnerable to the charge that she was seeking to mislead Senator Cornyn and others who read her response. Indeed, it’s worth noting that Kagan, in responding to other questions (see Specter questions 5.b and 5.c), states, “The Constitution has never been held to confer a right to” X. If the meaning of her response was limited to what the Supreme Court has held, why didn’t she make that meaning clear? Second, this limited meaning implicitly rests on an extravagant version of the myth of judicial supremacy: constitutional rights exist only if and when the Supreme Court says they do.


Kagan’s second possible meaning is: “The Constitution, properly construed, does not confer a right to same-sex marriage (and the Supreme Court has never recognized such a right).” If that is Kagan’s meaning, it has the great virtue of being right, and I would be very pleased to learn that that is her position. But given her insistence in her written responses to other senators that she can’t and won’t provide her “personal opinions of constitutional law (except in areas where I previously have stated opinions)” (and her statement, in response to Cornyn’s question 1.b, that she does “not recall ever expressing an opinion on this question”), there is ample reason for the careful reader of the entire set of Kagan’s responses to doubt that Kagan intends that meaning.

Tags: Whelan


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