Kagan's Troubling Record

[IndianaGreen]

Published on Friday, May 14, 2010 by 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.

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

[HereSince1628]

1. Her record is of little concern

This seems to be more about the perception of political possibilities. Yes, that awful bugabear of the pragmatists.
Kagan can be painted as a nonleftist, therefore, her appointment is doable. Doable is the operational imperative of the pragmatists who prefer to keep their powder unused.

[suston96]

2. The silent constitution......

"While Kagan has remained silent on many controversial issues, she has announced her belief that the Constitution provides no right to same-sex marriage."

That's actually a good thing. If the constitution doesn't explicitly deny same-sex marriage, then its validity - same sex marriage - can be considered by lawmakers and subsequently by courts. http://en.wikipedia.org/wiki/Same-sex_marriage_in_the_United_States

By the way, there is no explicit 'right to life' in the Constitution. What does that mean?

[unblock]

5. of course there is a right to life in the constitution

5th, 14th, and arguably the 8th amendments.

but here we're talking constraints on the government's power to take away life.

those who talk about a "right to life" these days have perverted the concept to mean empowering the government to prevent people from involvement in certain historically and culturally common and normal medical procedures that result in the death of a fetus, embryo, or zygote.

in this context it's interesting to note that there's nothing in the constitution that says outright murder must be illegal. the constitution is all about the structure and limitation of GOVERNMENT, not about laws regulating society. outlawing murder is merely one of the less controversial decisions for governments.

[suston96]

6. I said explicit - no explicit 'right to life'.

5th: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;" That is about double jeopardy.

14th: "nor shall any state deprive any person of life, liberty, or property, without due process of law;" That's about due process.

8th ? Nothing there. Arguable, indeed.

"the constitution is all about the structure and limitation of GOVERNMENT, not about laws regulating society" That I agree with.

Why when enumerating rights did the Framers of the Bill of Rights ignore the enumeration suggested by the Declaration of Independence? Among these rights are: Life, Liberty, and the Pursuit of Happiness?

[unblock]

7. what i was referring to is clearly there

5th: i wasn't referring to the "double jeopardy" section at all. after that is the "nor be deprived of life,
liberty, or property, without due process of law" part. it clearly acknowledges a right to life that the government cannot take away, at least not without due process. so it describes a right to life that is not absolute (at least not viewing this amendment in isolation).

14th: same logic as above, albeit applying to the states.

8th: the question is whether or not goverment killing amounts to "cruel and unusual punishment". i think it inherently is. no matter how "mercifully" it is done, pain and social sensibilities aside, there can be nothing more cruel than to take away someone's life. but there are clearly others who don't share my view, hence "arguable".

the declaration of independence's "life, liberty, and the pursuit of happiness" phrase was replaced in the 5th and 14th amendments with "life, liberty, or property". the substitution of property for happiness has been the subject of many literature over the years.

[madrchsod]

3. so what it comes down to.....

kagan is either a solid right leaning centrist or she`s just one degree left of roberts.

[indepat]

4. And the first time Kagan ever sides with the felonious ones against all remaining justices is the

day I will vow not to ever vote for whomever moved this rabid court more rabidly to the right. EOS :-)