Research

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)

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)

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))