Elena Kagan and the consequences of consequentialist thinking
Elena Kagan’s personal moral beliefs are quite relevant to judging her fitness to serve on the Supreme Court.
President Obama certainly has a right to put a liberal on the Supreme Court because liberal political tastes can be perfectly consistent with an appropriate fidelity to upholding the rule of law. But there are moral beliefs that many liberals possess today that largely conflict with upholding the rule of law.
As a result, nominee Elena Kagan’s personal moral beliefs are quite relevant to judging her fitness to serve on the Supreme Court.
Two branches of moral philosophy
Moral philosophers divide theories of morality between those that are consequentialist and those that are nonconsequentialist in nature.
Consequentialist theories of morality contend that moral propriety is determined by the consequences of actions, not the actions themselves.
Stealing, for example, is therefore deemed wrong because it harms the victim, not because it is inherently wrong to take something that belongs to someone else. For many consequentialists, justice is therefore a matter of how fair the final outcome is, not whether the process by which it was arrived at was fair. So if the final outcome of a rule, law, or policy is unequal, a consequentialist might view it as unjust on that basis alone.
A nonconsequentialist approach, however, holds that morality is rooted in principles that must be followed, even if the outcome is made less desirable by doing so. Cheating on one’s income taxes, for example, is deemed wrong even if no human is actually harmed and the money saved is given to the poor, because cheating is inherently wrong.
With respect to the law, an outcome is just if the relevant rules were followed (due process was observed); it has nothing to do with how fair or equitable the outcome is. Under nonconsequentialism, the existence of unequal outcomes is therefore not by itself viewed as unjust.
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