Legal Commentary

Kagan?s Memos for Justice Marshall

By Jonathan H. Adler

Jan Crawford reports on memos Elena Kagan wrote for Justice Thurgood Marshall during her clerkship that appear to reveal that she is quite liberal on social issues.  This is not particularly surprising, but it is interesting.  Here?s a taste of her report:

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.

She also expressed strong liberal views in a desegregation case. Summarizing a challenge to a voluntary school desegregation program, Kagan called the program ?amazingly sensible.? She told Marshall that state court decisions that upheld the plan recognized the ?good sense and fair-mindedness? of local efforts.

?Let?s hope this Court takes note of the same,? she wrote in the 1987 memo. Just three years ago, the Supreme Court struck down a nearly identical plan. . . .

Taken together, these documents are certain to provoke considerably more questions than the less controversial papers unearthed before her confirmation hearings for solicitor general.

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.?

Full post as published by The Volokh Conspiracy on June 03, 2010 (boomark / email).