Elena Kagan’s nomination to the Supreme Court should give Americans reason to reflect on the progressive assault on the Constitution that has been ongoing for a century or more. Progressives like John Dewey and Woodrow Wilson argued that our founders’ ideas were outmoded expressions of their time and place. For progressives, the survival and growth of the nation depend on the ability of political elites to exercise unlimited government power. In order for this to happen, the Constitution must be viewed as an ever-evolving, “living” document that encourages—rather than constrains—the exercise of government power. For early progressives, that power would be exercised through bold legislative and executive initiatives, especially at the national level. By the mid twentieth century, progressives came to realize that their dream of centralized command and control was better realized through reliance on the judiciary, and the Supreme Court in particular, rather than on branches that were more directly beholden to public opinion. But progressives have not given up on the executive branch as a locus of centralized power, and continue to seek ways for all branches to pursue progressive goals.
Elena Kagan understands progressive aspirations well. In a June 2001 Harvard Law Review article entitled “Presidential Administration,” she argued that more direct presidential control over the details of administration could further the ends of the regulatory state. Furthermore, she made the case that courts should be deferential to such presidential administration in light of the fact that, in the Clinton years, “presidential supervision” served as a “mechanism to achieve progressive goals,” including favoring regulation rather than trying to suppress it. She argued that courts should “recognize and promote this kind of control over agency policymaking” through various modifications of existing non-delegation and judicial review doctrines.
“The Study of Administration” was the title of one of Wilson’s most influential essays. Like Wilson, Kagan has skillfully attempted to reinvigorate that study. She claims to be concerned with accountability and efficiency within the otherwise diffuse American system of divided powers and checks and balances. But is she more concerned with establishing new command and control mechanisms that can be applied—largely if not exclusively for progressive purposes—to the American economy and moral-cultural order? Senators have an obligation to ask her, and not take “maybe” for an answer.