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