From a May 21 entry on The Wall Street Journal's Law Blog, headlined, “Kagan's 2003 Speech: A Window Into Her Views on Judging?”

[W]e strongly urge you to consider one more piece of background material on Kagan: a speech she gave in 2003 to Princeton alumni. (We wrote about the speech earlier in the context of points Kagan raised about the Bush v. Gore decision.)

The Senate Judiciary Committee has posted Kagan's handwritten notes for the speech here. (Turn to page 83 for the first page of the notes).

The notes deal with the topic of when should courts defer to the political branches. Because of the centrality of the issue to the work of the Supreme Court, we nominate the document as the first one senators should turn to in trying to get a sense of Kagan, the Justice.

The piece, in short, seems to suggest that in at least one key area, she would be an arbiter of judicial restraint, prone to giving considerable deference to acts of Congress.

Kagan articulates the basic proposition that judicial review is a necessary and desirable bulwark against majority will. But, she writes, review should be exercised with caution.

Kagan, an administrative law scholar, suggests that courts should refer to that body of law in deciding when to strike down Congressional actions as unconstitutional.

Under administrative law principles, she writes, courts defer to the actions of federal agencies when Congress has clearly authorized agencies to exert a special role in a certain area.

Similarly, she says, courts should defer to Congress when the framers of the Constitution clearly authorized legislators to exercise power. Such a clear authorization, she says, can be found in section 5 of the 14th Amendment, which grants substantive due process and equal-protection rights. Section 5 reads: “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

So, Kagan concludes, courts should defer to Congress when it takes actions to effectuate 14th Amendment rights.