Kagan’s Radical Jurisprudence

Elena Kagan's position on "Don't Ask, Don't Tell" is far more outside the mainstream of Anglo-American tradition and jurisprudence than any decision ever issued by the United States Supreme Court.

One controversial item in the record of Solicitor General Elena Kagan is her position regarding the recruitment of Harvard Law students by the United States military.   While she has steered clear of public statements on the controversial issues that most lawyers love to discuss, she stated in no uncertain terms that she abhorred the “Don’t Ask, Don’t Tell” policy that excludes some homosexuals from the military.

There are certainly reasonable positions on both sides of the question of whether federal law ought to do so.  But the law is what it is, and the military was following it. Kagan took the position that the military should start deciding which laws to follow and which laws to ignore. Such a position is far more outside the mainstream of Anglo-American tradition and jurisprudence than any decision ever issued by the United States Supreme Court.