Nominee Kagan: No Comment on Whether Precedent Is Correct

by Ed Whelan

As I explained last week, the Ginsburg Standard means that a Supreme Court nominee should refuse to answer any question about whether a particular precedent was rightly decided (except in those rare instances in which it’s clear that the meaning or scope of that precedent will not be at issue in any case that might come before the Court.

At her confirmation hearing, Justice Elena Kagan adopted exactly this approach: “I do not think it would be appropriate for me to comment on the correctness of a precedent of the Court.” (Written responses, answer to Sessions question #14.) When asked to “name the more poorly reasoned Supreme Court case, in your view, of the last fifty years” (emphasis added), she replied:

I do not think it would be appropriate for me to grade recent decisions of the Supreme Court, as the status of those cases as precedent and their application to new factual circumstances are issues that may come before the Court. One relatively recent decision (although not in the last 50 years) that was poorly reasoned and that is unlikely to come before the Court again is Korematsu v. United States, 323 U.S. 214 (1944). [Answer to Cornyn question #22 (emphasis added).]

Time after time during oral questioning and in her written responses, she refused invitations to express her opinion on dozens of cases.

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