The nomination of Elena Kagan has opened up a public debate on her qualifications, her public record (or lack of it), and even her sexual orientation. I will deal with none of these here. Normally, this space would not be concerned with the merits of a particular nomination to the Supreme Court, but is it really necessary for me to point out that we aren’t living in normal times? Ever since 9/11, when our rulers decided to junk the Constitution, and started picking off our civil liberties like a sharpshooter at the range, the judiciary has been one of the last defenses of a free people against the depredations of our war-maddened rulers.
If Ms. Kagan is confirmed, however, that last recourse will be far less reliable. Her views on the First Amendment, alone, ought to have civil libertarians, both liberals and conservatives, manning the barricades and declaring, “No pasaran!”
According to Kagan, the government may limit speech not only if the consequences of free expression are deleterious to public safety and order, but also if the “motive” of the government is pure – that is, free of any consideration of the self-interest of public officials, or any a priori evaluation of some ideas as inherently and permanently invalid.
I am simplifying her argument considerably, of course: in her article for the University of Chicago Law Review she makes a complex, and even an elegant argument – an argument, I would add, that is deadly dangerous to the concept of individual liberty. Go check it out for yourself.