Kagan's Troubling Record

After President Obama nominated Elena Kagan for the Supreme Court, he
made a statement that implied she would follow in the footsteps of
Justice Thurgood Marshall, the civil rights giant and first black
Supreme Court justice. Kagan served as a law clerk for Marshall
shortly after she graduated from Harvard Law School. Specifically,
Obama said that Marshall's "understanding of law, not as an
intellectual exercise or words on a page, but as it affects the lives
of ordinary people, has animated every step of Elena's career."
Unfortunately, history does not support Obama's optimism that Kagan is
a disciple of Marshall.

Kagan demonstrated while working as his law clerk that she disagreed
with Marshall's jurisprudence. In 1988, the Supreme Court decided
Kadrmas v. Dickinson Public Schools, a case about whether a school
district could make a poor family pay for busing their child to the
closest school, which was 16 miles away. The 5-justice majority held
that the busing fee did not violate the Fourteenth Amendment's Equal
Protection Clause. They rejected the proposition that education is a
fundamental right which would subject the statute on which the school
district relied to 'strict scrutiny.' The Court also declined to
review the statute with 'heightened scrutiny' even though it had
different effects on the wealthy and the poor. Instead, the majority
found a 'rational basis' for the statute, that is, allocating limited
governmental resources.

Marshall asked clerk Kagan to craft the first draft of a strong
dissent in that case. But Kagan had a difficult time complying with
Marshall's wishes and he returned several drafts to her for, in
Kagan's words, "failing to express in a properly pungent tone - his
understanding of the case." Ultimately, Marshall's dissent said, "The
intent of our Fourteenth Amendment was to abolish caste legislation."
He relied on Plyler v. Doe, in which the Court had upheld the right of
the children of undocumented immigrants to receive free public
education in the State of Texas. "As I have stated on prior
occasions," Marshall wrote, "proper analysis of equal protection
claims depends less on choosing the formal label under which the claim
should be reviewed than upon identifying and carefully analyzing the
real interests at stake." Kagan later complained that Marshall
"allowed his personal experiences, and the knowledge of suffering and
deprivation gained from those experiences to guide him."

Kagan evidently rejects these humanistic factors that guided
Marshall's decision making and would follow a more traditional
approach. This is a matter of concern for progressives, who worry
about how the Supreme Court will deal with issues like a woman's right
to choose, same sex marriage, "don't ask, don't tell," and the right
of corporations to donate money to political campaigns without
restraint. While Kagan has remained silent on many controversial
issues, she has announced her belief that the Constitution provides no
right to same-sex marriage. If the issue of marriage equality comes
before the Court, Justice Kagan would almost certainly rule that
denying same sex couples the right to marry does not violate equal
protection.

There are other indications that should give progressives pause as
well. During her solicitor general confirmation hearing, Kagan said,
"The Constitution generally imposes limitations on government rather
than establishes affirmative rights and thus has what might be thought
of as a libertarian slant. I fully accept this traditional
understanding..." But the Constitution is full of affirmative rights -
the right to a jury trial, the right to counsel, the right to assemble
and petition the government, etc. Does Kagan not understand that
decisions made by the Supreme Court give life and meaning to these
fundamental rights? Is she willing to interpret those provisions in a
way that will preserve individual liberties?

While Kagan generally thinks the Constitution serves to limit
governmental power, she nevertheless buys into the Republican theory
that the Executive Branch should be enhanced. In one of her few law
review articles, Kagan advocated expansive executive power consistent
with a formulation from the Reagan administration. This is reminiscent
of the 'unitary executive' theory that George W. Bush used to justify
grabbing unbridled executive power in his 'war on terror.'

As solicitor general, Kagan asserted in a brief that the 'state
secrets privilege' is grounded in the Constitution. The Obama White
House, like the Bush administration, is asserting this privilege to
prevent people who the CIA sent to other countries to be tortured and
people challenging Bush's secret spying program from litigating their
cases in court.

During her forthcoming confirmation hearing, senators should press
Kagan to define her judicial philosophy. Several of the radical
right-wingers on the Court define themselves as 'originalists',
claiming to interpret the Constitution consistent with the intent of
the founding fathers.

I would like to hear Kagan say that her judicial philosophy is that
human rights are more sacred than property interests. I would hope she
would declare that her judicial philosophy favors the right to
self-determination - of other countries to control their destinies, of
women to control their bodies, and of all people to choose whom they
wish to marry.

Kagan is likely to be circumspect about her views. She will frequently
decline to answer, protesting that issues may come before the Court.
We should be wary about how Justice Kagan will rule when they do.