Bench Memos

Is Kagan’s Idea of Judicial Restraint Merely Internal?

William Rehnquist has been cited as a justice who, like Elena Kagan, was never a judge before his nomination to the Supreme Court. (Rehnquist was an assistant attorney general in the U.S. Justice Department at the time of his nomination.) But, from every indication we have of Elena Kagan’s views, his approach to judging was very different.

A good example is Rehnquist’s understanding of the importance of the limits on judicial notice, as expressed during the oral arguments in Roe v. Wade and Doe v. Bolton. In his rookie year as a justice, William Rehnquist heard arguments in Roe and Doe — undoubtedly two of the most controversial cases of his 34-plus years on the Court. (There were actually re-arguments, with the cases first argued back to back in December 1971, though Rehnquist and Powell were absent from the first arguments.) The records in Roe and Doe were terrible, virtually non-existent. They consisted of a complaint and affidavit, motions to dismiss, and two-hour oral arguments (much of which were taken up with procedural issues) — and then direct appeal to the Supreme Court, without any intervening appellant review.

All of the medical, historical, and constitutional issues that shaped the outcome of the final opinions in Roe and Doe were contained not in the lower court record but in the parties and amici briefs filed in the Supreme Court.

Judicial notice was a key issue in the cases, and only Rehnquist thought to inquire about it.

In the Doe case, the attorney for the abortion plaintiffs from Georgia, Margie Pitts Hames, argued for ten or twelve minutes without interruption, until Justice Rehnquist asked the first question. She had cited “last Sunday’s New York Times” for its reference to abortion-mortality statistics in New York City since July 1, 1970, when New York first legalized abortion.

Rehnquist asked: “Mrs. Hames, is there any limit to the judicial notice which we can take? I mean, is last Sunday’s newspaper a perfectly permissible thing for us to rely on in deciding a case like this?” (Hames basically dodged the question, but Rehnquist’s doubt was sound — the New York City data were garbage.)

It went to the heart of the problem with the Roe and Doe cases — no record on the complex medical and sociological allegations that were being thrown at the justices. The excellent advocate for Georgia, Dorothy Beasley, made the point several times, but without any apparent curiosity by the justices.

Rehnquist alone had a good sense that there were limits on judicial notice — what judges could accept as “constitutional facts” that were completely outside the record, and thereby untested by the advocacy process, in deciding constitutional cases.

In her opening statement on Monday, Elena Kagan — sounding very much like her judicial hero, former Israeli chief judge Aharon Barak — referred to the “rule of law,” “under law,” or “in accordance with law” at least seven times. These vague phrases mean little, however, without the understanding that judges, like the other two branches of government, are also constrained by the law and the Constitution. Specific rules, such as judicial notice, and not just vague phrases constrain judges.

Kagan’s vague phrases point to the vast difference between Rehnquist and Kagan. Rehnquist understood that judges are bound by the intent of the people and the ratifiers embodied in the text of the Constitution. For Kagan, the rule of law means the rule of judges, since the ultimate standard for the rule of law is what the judges say and their personal sense of restraint, a very fragile constraint to federal judicial power.

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