No Legislating From the Bench, Except for the Laws I Want

That is essentially the position that Republicans on the Senate Judiciary Committee are trying to get Elena Kagan to endorse — and so far she has declined to do so:

Over and over, Ms. Kagan reminded the senators questioning her of their own duty to pass cogent, sensible — and constitutional — laws. The Supreme Court, she said, was not created to strike down foolish measures.

On Tuesday, for instance, Senator Tom Coburn, Republican of Oklahoma, asked what should happen if Congress enacted a law requiring Americans “to eat three vegetables and three fruits every day.”

“It sounds like a dumb law,” Ms. Kagan said. But she would not commit to striking it down. “I think that courts would be wrong to strike down laws that they think are senseless, just because they’re senseless,” she said.

Ms. Kagan repeatedly said she would show “great deference to Congress.” Perhaps surprisingly, that was not what many senators seemed to want to hear. They appeared to want the Supreme Court to save them from themselves.

Prof. Darren Hutchinson agrees that judicial deference to legislative intent is a well-established principle. However, Adam Liptak (the author of the New York Times article quoted above) focuses on that “unassailable” principle to the detriment of the larger issue:

… Laws can be “dumb” and unconstitutional simultaneously.

For example, Liptak notes that Kagan views the sentencing disparity between crack and powder cocaine as a “policy” issue. That point is unassailable. But the sentencing laws also raise a question of equality, due to their racial impact. Legal scholars have long criticized the disparity, but most courts have held that the policy does not violate the Equal Protection Clause.
Asking whether the Court can or should invalidate “silly” laws misses the point. This is clearly not the duty of courts, and Supreme Court doctrine already reflects this logic. The broader and more important question is whether silly or sound laws violate the Constitution. On the issue of substantive constitutional law, Kagan — like others before her — has not revealed much about her potential approach.


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