A New York Times article claimed that in her graduate Oxford thesis, Elena Kagan “was critical of a liberal ruling not for its judicial activism ... but because it was not more rigorously grounded in a legal foundation that would survive future attacks.” In fact, in the thesis -- which Kagan wrote in 1983 -- Kagan said that court rulings must be rigorously grounded for another reason as well: "[O]nly the methods of principle and reason can justify supreme judicial authority in a political democracy." Or, as the Wall Street Journal put it, the views expressed in Kagan's thesis “may help her defend herself from any claim by Republican senators that she is a judicial activist.”

The New York Times reports:

As a young graduate student, Elena Kagan wrote that it was “not necessarily wrong or invalid” for judges to “try to mold and steer the law” to achieve social ends, but warned that such rulings must be rooted in legal principles to be accepted by society and endure.

In fact, Kagan repeatedly made clear that judicial rulings must also be rooted in legal principles in order for them to be legitimate in a democratic system. In the introduction to her thesis, Kagan wrote:

First, some have argued that only the methods of reason and principle justify supreme judicial power in a democracy. Why, after all, should nine appointed lawyers play so large a role in a democratic nation? Only because these nine lawyers arrive at their decisions in a unique and inherently valuable way -- only because these lawyers resolve all issues by reference to law and legal principle.

In the conclusion, Kagan explicitly endorsed the theory that judges must ground their decisions in legal principles in order for them to be legitimate in a democratic system:

The judge must make principled decisions for three reasons. First, only the methods of principle and reason can justify supreme judicial authority in a political democracy. Second, only those methods can guarantee that the public will continue to accept and support the Supreme Court's role in the American system of government. Third -- and most important from our point of view - only those methods can ensure that. opinions will have a lasting effect. [emphasis added]

Furthermore, at no point in the thesis did Kagan endorse “judicial activism.” The Times reported: “Ms. Kagan was critical of a liberal ruling not for its judicial activism or its efforts to achieve a form of social justice, but because it was not more rigorously grounded in a legal foundation that would survive future attacks.”

However, as the Times acknowledges, Kagan's entire theory is that courts must ground their decisions in legal principles, which one could argue is the opposite of judicial activism. Worse, the Times article does not even define the term “judicial activism,” which -- according to some measures -- conservative judges engage in more often than more progressive judges.

We'll leave you with more from The Wall Street Journal's reporting on Kagan's thesis, which much more accurately represents what she said at the time:

In her 1983 masters thesis, Elena Kagan criticized the Supreme Court under liberal icon Earl Warren for what she described as poorly argued rulings, a view that may help her defend herself from any claim by Republican senators that she is a judicial activist.

[...]

In the Oxford paper, Ms. Kagan wrote that Supreme Court justices should rest their rulings squarely on a firm legal foundation, such as statutes and court precedents. Only then can court rulings command respect and stand the test of time, she wrote.

The paper, together with separate materials at the Library of Congress that depict Ms. Kagan's views as a Supreme Court clerk in 1987-88, show that at an early age she was willing to accept results contrary to her sympathies when she said her analysis showed the law required it.

In the thesis, she wrote that justices sometimes “attempt to steer the law in order to achieve certain ends and advance certain values....Their concentration on end-results leads them to neglect legal means.”

The paper focuses on the exclusionary rule, a criminal-law principle restricting prosecutors from introducing evidence seized illegally by law enforcement.

While an important principle, Ms. Kagan wrote, the Supreme Court overreached in its application during the 1960s, when the court was at its liberal zenith under Chief Justice Earl Warren.

In a 1961 case, written by Justice Tom Clark and joined by Justice Warren, the court overturned precedent and applied the exclusionary rule to state-court proceedings, without articulating a sound basis to do so, Ms. Kagan wrote.