Kagan and the “Governmental Motive Test”

In a law review article, Elena Kagan argued that First Amendment doctrine actually is focused not on the effects of a legislative enactment, but on the motive of the government actor.[1] Looking for governmental motive invariably involves looking for bad motives, i.e. reasons to strike down an enactment by legislatures.

Pro-abortion academics and judges have long sought to impose an “anti-abortion motive” analysis to invalidate state abortion regulations.  For example, Supreme Court Justice Harry Blackmun applied a motive analysis to strike down abortion health regulations in 1986 in Thornburgh v. American College of Obstetricians & Gynecologists[2].

While Pennsylvania sought to require that women be informed of any “detrimental physical and psychological effects” of abortion and of the “particular medical risks” from abortion, Blackmun struck down the statute with this sneering line:  “That the Commonwealth does not, and surely would not, compel similar disclosure of every possible peril of necessary surgery or of simple vaccination, reveals the anti-abortion character of the statute and its real purpose.”[3]

Justice O’Connor, dissenting, rightly skewered Blackmun’s illogic, noting that it had long been recognized to be within a state legislature’s constitutional authority to regulate the medical profession in this way.[4]

(That Blackmun would compare an abortion with a vaccination says a lot about his mindset, and is quite bizarre in light of the growing body of evidence of the negative health consequences to women from abortion.  And the notion that when legislatures regulate abortion they must simultaneously regulate all other areas of health care in the same way is absurd on its face and is not required by courts in other contexts.)

The “anti-abortion motive” analysis hasn’t been applied by a Supreme Court majority since.

The current Supreme Court majority, which upheld the federal partial birth abortion law in Gonzales v. Carhart in 2007, is unlikely to adopt it.  However, a slight tilt in the Court could change that.

The search for legislative “motive” has many problems. It is often a pretext for finding a reason to strike down legislation which has been passed by accountable, elected representatives. And, despite her emphasis on governmental motive, Kagan’s article actually demonstrates that accepted free speech jurisprudence includes objective criteria (like text and plain language) that go back to the English common law and that more reliably identify an unconstitutional impact on free speech, than would a search for the subjective motives of lawmakers.

But disdain for legislative intent ultimately undermines self-government.  If there is no such thing as legislative intent, then a law, upon passage, does not convey the will of elected representatives but is simply a malleable device for judicial reconstruction.  The will of the people, expressed through the representative branches of government, is rendered irrelevant upon passage of a law.  That has great implications for judicial power when it comes to interpreting the Constitution.


Kagan’s affinity for the search for the highly subjective legislative “motive” is disconcerting.  Along with her disdain for the much more objective, disciplined and broadly accepted inquiry into “legislative intent” it exalts judicial freedom in “interpreting” laws enacted by the representative branches.  As such, it is another indication of Elena Kagan’s deep admiration for judicial activism and for judges who have an exaggerated view of their role in transforming society.  Would she bring those views to her service on the Supreme Court and to its abortion jurisprudence?

[1] Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L.Rev. 413 (1996).

[2] 476 U.S. 747 (1986).

[3] Id. at 764.

[4] Id. at 829.

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