During Elena Kagan’s 2010 Supreme
Court confirmation
hearings, Republican Sen. Tom Coburn of Oklahoma asked the
future justice if she believed Congress had the power under the
Commerce Clause to force Americans to “eat three vegetables and
three fruits every day.” Laughing in response, Kagan said that
while it sounded “like a dumb law,” that did not necessarily make
it an unconstitutional one. “I think that courts would be wrong to
strike down laws that they think are—are senseless just because
they’re senseless,” she continued, adding later, “the principle
protector against bad laws is the political branches themselves.
And I would go back, I think, to Oliver Wendell Holmes on this. He
was this judge who lived, you know, in the—in the early 20th
century. Hated a lot of the legislation that was being enacted
during those—those years, but insisted that if the—if the people
wanted it, it was their right to go hang themselves.”

In other words, Kagan effectively admitted that Congress did in
fact possess the power to force broccoli purchases, at least under
her interpretation of the Commerce Clause. And if you don’t like
that fact, her answer continued, take your complaint to the ballot
box, not to the courthouse, since the judiciary owes deference even
to “senseless” laws.

I dig up all of this ancient history because Kagan’s answer to
Coburn was deployed recently as a weapon against Republican Sen.
Rand Paul of Kentucky. Writing at The Atlantic, liberal
legal commentator Garrett Epps found himself in the uncomfortable
position of mostly agreeing with the point of Paul’s anti-drone
filibuster last week while simultaneously disagreeing with Paul
about almost everything else. Epps’
solution was to denounce Paul as a “demagogue” before
reluctantly admitting, “One doesn’t have to be Rand Paul to see
that this administration’s approach to public discussion of the new
reality has been grudging at best and disingenuous at worst.”

To call someone a demagogue is not to compliment them,
of course, so I was curious to discover how Epps would support this
unkind allegation. Here, in its entirely, is how he tried to do
it:

Paul likes to distort quotes from his political foes — witness
his earlier claim that Elena Kagan had said that the government
could require citizens to eat broccoli, when the record shows
clearly that she didn’t.

But that Paul is a demagogue doesn’t diminish the
administration’s ham-fistedness in the drone-war debate. There’s a
growing suspicion that its flawed responses represent not simply
inept spin but a troubling ambivalence about the rule of law.

It’s true that Kagan never used the word yes in
response to Coburn’s question, as Paul apparently said that she
did, but Epps’ case disintegrates beyond that. Not only did Kagan
clearly state that “senseless” laws (like the “dumb” fruit and
vegetable mandate hypothesized by Coburn) could still be upheld as
constitutional, she specifically invoked the example of Justice
Oliver Wendell Holmes, the Supreme Court’s most famous advocate of
judicial deference to lawmakers, a jurist who believed the
Constitution should almost never interfere with “the right of the
majority to embody their opinions in law.” So Kagan basically told
the country that the Supreme Court had no business interfering with
Congress’ powers under the Commerce Clause.

If liberals like Epps are committed to denouncing Paul every
time they find themselves agreeing with him on drones, they should
at least try to come up with a more plausible line of attack.