Research

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 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)