The World Is Kagan’s Battlefield

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.

Suffice to say here that, in Kagan’s world, it’s okay to proscribe certain expressions if (1) the government can show an overriding public interest in doing so, and (2) if the motives of government officials can pass the test of self-interest – or, at least, give the formal appearance of neutrality.

She has further written in favor of academic speech codes, and, in this context, her thesis on the history of the socialist movement in New York, while no doubt an admirable, value-neutral, scholarly effort, implicates her as being at least sympathetic to the goals if not the methods of a movement that has included a totalist as well as a democratic element.

Given the predicament in which we find ourselves today, with the Constitution under assault from every side –  from the neocons on the right, who want to outlaw “subversion,” and dispense with habeas corpus, and from some “progressives” who see government power as a panacea, especially now that they’re in control of the national government – Kagan is the last person we need on the Court.

Kagan backs the Obama administration’s policy of indefinite detention, a blatantly unconstitutional and dangerous position that continues the Bush era assault on what is left of our liberties – and she would even extend it, if we take seriously her colloquy with Sen. Lindsey Graham. Asked by the Senator if she would apply “battlefield law” instead of criminal law to someone suspected – suspected – of providing material support to a terrorist organization, such as al Qaeda, she answered that she would indeed.

Going further than even the Bush administration, Kagan insisted that the “battlefield” extends far beyond any war zone – including the Philippines, in the context of Senator Graham’s question, and, theoretically, even the US. So if, for instance, some little old lady is bamboozled into giving to a charity that supports, say, Hamas – designated a terrorist organization by the US State Department – she could be charged with giving “material support” to a terrorist entity, and held indefinitely, without trial, for the rest of her natural life. If the whole world’s a battlefield, then there’s bound to be a lot of collateral damage.

It’s quite clear, from the remarks of Attorney General Eric Holder the other day, that the administration is getting ready to streamline the “enemy combatant” concept first established by the Bushies: instead of discarding it, they want to give it the proper appearance of “legality.” Given Kagan’s rather expansive view of the powers of the executive branch of government, and in tandem with her hostility to the First Amendment, her general pro-government orientation will no doubt make her amenable to whatever fresh limitations on our liberties the Obama-ites have in mind.

The “progressives” have spent a lot of time and energy, recently, trying to “expose” the “dark underside” of the Tea Party movement, and the liberal media has conducted a determined albeit unconvincing propaganda campaign against “right-wing extremism,” which is supposed to represent the main threat to our well-being at the moment. Yet I would argue that none of these movements – being out of power, and largely not the bigoted potentially violent knuckle-draggers their opponents characterize them as – are a tenth as dangerous as the we-know-what’s-good-for-you “progressives” of Obama’s Nanny State.

Married to the concept of an endless “war on terrorism,” progressives of Kagan’s sort represent an imminent menace: an authoritarian tendency that could usher in an era of internal repression such as only writers of dystopian science fiction have previously imagined.

Instead of abolishing the Bush era expansions of unlimited government power, they are building on them – and upping the ante. With their boundless faith in government power as an essentially beneficent force in the world, and their pathetic eagerness to prove their “national security” bona fides, this administration is potentially far more of a threat to our civil liberties than the Bush people ever were – and the Kagan nomination is yet more evidence this malign potential is being fully realized.

The final nail in the coffin of the Kagan nomination, as far as I’m concerned, is her close association, for a number of years, with the firm of Goldman Sachs, serving on its legal “advisory board.” This board is being portrayed, by Kagan’s defenders, as a chiefly ceremonial body, which held a few conferences and did nothing much else. This is given as a reason to downplay the Goldman Sachs connection, but it doesn’t ameliorate the moral meaning of her role in putting a legalistic face on the naked avarice and influence-buying engaged in by those crooks.

Glenn Greenwald calls Kagan Obama’s “natural choice,” which is true enough, including in ways Glenn probably never thought of. After all, it’s only natural that the biggest contributor to Obama’s presidential campaign would be rewarded in this way: it’s a natural development of the kind of crony capitalism the Obama administration – and the Bush administration before it – exemplify.

Author: Justin Raimondo

Justin Raimondo passed away on June 27, 2019. He was the co-founder and editorial director of, and was a senior fellow at the Randolph Bourne Institute. He was a contributing editor at The American Conservative, and wrote a monthly column for Chronicles. He was the author of Reclaiming the American Right: The Lost Legacy of the Conservative Movement [Center for Libertarian Studies, 1993; Intercollegiate Studies Institute, 2000], and An Enemy of the State: The Life of Murray N. Rothbard [Prometheus Books, 2000].