[lbo-talk] Majorie Cohn on Kagan

Michael Pollak mpollak at panix.com
Fri May 14 19:36:47 PDT 2010


http://www.commondreams.org/view/2010/05/14

Friday, May 14, 2010

CommonDreams.org

Kagan's Troubling Record

by Marjorie Cohn

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.

* * *

Marjorie Cohn is a professor at Thomas Jefferson School of Law and

past President of the National Lawyers Guild. She is the author of

Cowboy Republic: Six Ways the Bush Gang Has Defied the Law [1] and

co-author of Rules of Disengagement: The Politics and Honor of

Military Dissent [2] (with Kathleen Gilberd). Her anthology, The

United States and Torture: Interrogation, Incarceration and Abuse,

will be published in 2010 by NYU Press. Her articles are archived at

www.marjoriecohn.com



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