BORK IN DRAG:

Kagan Criticized the Warren Court in Thesis (NATHAN KOPPEL And JESS BRAVIN, 5/18/10, WSJ)

In the Oxford paper, Ms. Kagan wrote that Supreme Court justices should rest their rulings squarely on a firm legal foundation, such as statutes and court precedents. Only then can court rulings command respect and stand the test of time, she wrote.

The paper, together with separate materials at the Library of Congress that depict Ms. Kagan's views as a Supreme Court clerk in 1987-88, show that at an early age she was willing to accept results contrary to her sympathies when she said her analysis showed the law required it.

In the thesis, she wrote that justices sometimes "attempt to steer the law in order to achieve certain ends and advance certain values.…Their concentration on end-results leads them to neglect legal means."

The paper focuses on the exclusionary rule, a criminal-law principle restricting prosecutors from introducing evidence seized illegally by law enforcement.

While an important principle, Ms. Kagan wrote, the Supreme Court overreached in its application during the 1960s, when the court was at its liberal zenith under Chief Justice Earl Warren.

In a 1961 case, written by Justice Tom Clark and joined by Justice Warren, the court overturned precedent and applied the exclusionary rule to state-court proceedings, without articulating a sound basis to do so, Ms. Kagan wrote.

"Simply put, the criminal justice systems of many of the states offended the ethical sensibilities of the Warren Court," she wrote.

In a range of cases, "the court asserted its right to no less than lead the nation," she added. "Essentially, the Warren Court lacked faith in the ability of the president, the congress or the state legislatures to guide America in the proper direction."

Towards the end, she concludes: "No court should make or justify its decisions solely by reference to the demands of social justice. Decisions should be based upon legal principle."