Research Briefing

As Supreme Court Clerk, Elena Kagan Revealed Her Liberal Philosophy And Learned How To Use The Court To Advance It

“[K]agan -- while working as a law clerk to the late Justice Thurgood Marshall – made her positions clear on some of the nation's most contentious social issues. … [S]tanding shoulder-to-shoulder with the liberal left...” (Jan Crawford, “Documents Show Kagan's Liberal Opinion on Social Issues,” CBS News, 6/3/10)

KAGAN’S VIEW OF THE COURT CLEARLY STAYED WITH HER AFTER CLERKSHIP

In 1995, Kagan Argued That Supreme Court Justices’ Votes Have “Little To Do With Technical Legal Ability And Much To Do With Conceptions Of Value.” “But Kagan put forward a different idea of judging in a 1995 law review article. ‘It should be no surprise by now that many of the votes a Supreme Court justice casts have little to do with technical legal ability and much to do with conceptions of value,’ Kagan said in a review of Yale law professor Stephen Carter's book ‘The Confirmation Mess.’” (Mark Sherman, “Kagan’s Writings Suggest Her View On Judge’s Role,” The Associated Press, 5/23/10)

• In Deciding A Hard Case, Kagan Argued A Justice’s “Own Experience And Values [Are] The Most Important Data.” “Kagan quoted Carter approvingly to say that to decide the hard cases that rise to the level of Supreme Court review, justices must use their judgment. When they do that, Kagan said (again citing Carter), their ‘own experience and values become the most important data.’ It may be hard to divine just what Kagan meant, but it's ‘not calling balls and strikes,’ says Georgetown University law professor Pamela Harris.” (Mark Sherman, “Kagan’s Writings Suggest Her View On Judge’s Role,” The Associated Press, 5/23/10)

KAGAN MEMOS AS CLERK REVEAL VIEWS FAR TO THE LEFT OF MAINSTREAM

Kagan Worried That Conservative Court Would Use Abortion Case To Undo Precedent And “Create Some Very Bad Law On Abortion.” “On abortion, Kagan wrote a memo in a case involving a prisoner who wanted the state to pay for her to have the procedure. Kagan expressed concern to Marshall that the conservative-leaning Court would use the case to rule against the woman--and possibly undo precedents protecting a woman's right to abortion. ‘This case is likely to become the vehicle that this court uses to create some very bad law on abortion and/or prisoners' rights,’ she wrote in the 1988 memo.” (Jan Crawford, “Documents Show Kagan's Liberal Opinion on Social Issues,” CBS News, 6/3/10)

Kagan Wrote In A Memo That Faith-Based Groups Should Not Counsel Pregnant Teens As “It Would Be Difficult For Any Religious Organization” To Do So “Without Injecting Some Kind Of Religious Teaching.” “SPECTER: Dean Kagan, coming to the citations that I had mentioned earlier about how strongly you felt on the -- on the Solomon case, you wrote a memo for Justice Marshall in Bowing (ph) v. Kendrick, which involved the Adolescent Family Life Act, which authorized federal funds for religious organizations designed to discourage teen pregnancy and to provide care to teen -- pregnant teens.  And the Supreme Court upheld the statute.  And your memo said, quote, ‘It would be difficult for any religious organization to participate in such projects without injecting some kind of religious teaching.’ Now, I asked you about the Solomon military issue where you had very, very strong moral objections, but you assert that you can function in an advocacy role not withstanding your own personal views.” (Senate Judiciary Hearing Transcript, Elena Kagan Solicitor General Nomination, 02/10/09)

As A Clerk, Kagan Wrote That She Was “Not Sympathetic” To A Defendant Who Argued That The D.C. “Firearms Statutes Violate His Constitutional Right To ‘Keep And Bear Arms.” “Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was ‘not sympathetic’ toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol…The man’s ‘sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms,’’ Kagan wrote. ‘I’m not sympathetic.’” (Greg Stohr and Kristin Jensen, “Kagan Said She Was `Not Sympathetic' Toward Gun-Rights Claim,” Bloomberg, 5/13/10)

Kagan Took “Liberal View” On 14^th Amendment That “Constitutional Guarantee Of Liberty Should Be Read Broadly.” “As a Supreme Court law clerk in 1987, Elena Kagan read the 14th Amendment as permitting lawsuits against reckless state officials who ignore their duties—reflecting the liberal view that the constitutional guarantee of liberty should be read broadly.” (Jess Bravin, “Kagan Backed Broad Interpretation Of 14^th Amendment,” The Wall Street Journal, 5/16/10)

• Court Rejected That View And “Narrowly Defined What ‘Liberty’ The Constitution Protects.” “That position was rejected by the court's conservative majority in a 1989 case, DeShaney v. Winnebago County, which narrowly defined what ‘liberty’ the Constitution protects. The court's 6-3 ruling immunized state welfare officials who over the course of a year failed to act when repeatedly alerted to an alcoholic father's violent abuse of his four-year-old son….Many liberals consider the ruling profoundly flawed, while conservatives praised it for denying recognition to what they call new rights.” (Jess Bravin, “Kagan Backed Broad Interpretation Of 14^th Amendment,” The Wall Street Journal, 5/16/10)

Kagan Would Overturn Standards Which Limited Appeals For Convicted Criminals. “In a case involving prisoners' rights, for example, Kagan criticized a 1984 Supreme Court decision--Strickland v. Washington - which set tough new standards for convicted criminals to argue they were denied effective assistance of counsel. Marshall and another liberal icon, Justice William Brennan, were the only dissenters in that case, written by Justice Sandra Day O'Connor. ‘I'd like to reverse Strickland too,’ Kagan wrote in her memo to Marshall three years later, ‘but something tells me this court won't buy the idea.’” (Jan Crawford, “Documents Show Kagan's Liberal Opinion on Social Issues,” CBS News, 6/3/10)

Kagan Sought To Overturn Lower Court Ruling Questioning Constitutionality Of Rent-Control, Stating “This Opinion Is Outrageous.” “As a young law clerk working for Justice Thurgood Marshall at the Supreme Court in September 1987, Elena Kagan  wrote an angry memorandum urging her boss to try to overturn a conservative appeals court ruling that had questioned the constitutionality of a rent-control ordinance. ‘All in all, this opinion is outrageous,’ wrote Ms. Kagan …” (Charlie Savage, “In Supreme Court Work, Early Views of Kagan,” The New York Times, 6/3/10)

EVEN MORE TROUBLING, THEY SHOW A WILLINGNESS

TO USE THE COURT TO ADVANCE POLICY OVER LAW

Kagan Advised Marshall To “Vote For So-Called Defensive Denials” Of Appeals To “Prevent His More Conservative Colleagues From Giving More Power To Police And Prosecutors.” “Kagan on numerous occasions urged the justice to vote for so-called defensive denials, rejecting appeals from criminal suspects and defendants to prevent his more conservative colleagues from giving more power to police and prosecutors. She urged rejection of an appeal from an Illinois man whose burglary conviction hinged on evidence discovered when he was stopped, ordered to lie down and searched by police. The search took place even though police lacked the ‘probable cause’ required to make an arrest, Kagan said. Kagan said she thought the court, if it heard the case, would uphold the conviction. That ‘would be an awful and perhaps quite consequential holding,’ she wrote.” (Greg Stohr & Kristin Jensen, “Kagan Said She Was `Not Sympathetic' Toward Gun-Rights Claim,” Bloomberg, 5/13/10)

Despite Believing Decision Was Legally Incorrect, Kagan Recommended Against Taking Immigration Case, Since She Felt Judge “Ensured An Equitable Result” At “No Great Cost To The Republic.” “For example, on Oct. 7, 1987, she analyzed a case in which a judge dismissed an immigrant’s guilty plea over a minor infraction because it could jeopardize his application for permanent residency. The Justice Department appealed, saying the district court had exceeded its authority. Ms. Kagan wrote that the Justice Department’s view was ‘almost certainly correct.’ Still, she recommended against taking the appeal because the judge had ‘ensured an equitable result’ at ‘no great cost to the Republic.’ Justice Marshall scrawled ‘D’ for ‘deny’ at the top of her memorandum.” (Charlie Savage, “Kagan’s Link To Marshall Cuts 2 Ways,” The New York Times, 5/12/10)

• In US v. Shonde (802 F.2d 937 (1986)) Kagan Wrote That Even Though The District Court “Exceeded Its Authority” They “Ensured An Equitable Result.” “I think the Court should deny this petition. The SG is almost certainly correct that the DC exceeded its authority in this case. By doing so, however, the DC ensured an equitable result. Moreover, the DC effected this outcome at no great cost to the Republic. Notwithstanding the SG’s flaming rhetoric, the DC’s decision and the CA’s page-long affirmance is unlikely to have any consequences beyond this case.” (Elena Kagan, “Memo to Justice Thurgood Marshall in United States v. Shonde,” Located At The New York Times (1987))