She did, however, provide, a few clues. In her opening statement, Kagan said that the court “has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals,” but “must also recognize the limits on itself and respect the choices made by the American people.” A justice, she said, must be a vigilant “trustee” of the “blessings of liberty,” but also “properly deferential to the decisions of the American people and their elected representatives.”
Among our most cherished “blessings of liberty” is the freedom of religion, our “first freedom.” In the words of James Madison, the “father of the Constitution,” America’s experiment in religious liberty has brought “lustre to our country.”
What, in Kagan’s view, is the role of the court in this experiment? When it comes to questions of religious liberty and church-state relations, does she think a justice should show vigilance or deference?