It may not be as viscerally shocking as the “wise Latina woman” quote, but if Kagan has a phrase that has caused her some difficulty, it is her praising as a “thing of glory” Justice Marshall’s vision of the Court,” which she characterized as demanding a special solicitude for the “despised and disadvantaged.” In response to a question from Senator Kyl, Kagan said that what she meant by that phrase was that it was a thing of glory that the Court was open to all parties, particularly those who weren’t able to get redress from other branches of government.  But that reading is difficult to reconcile with what she actually said in the article, in which she stated: “And however much some recent Justices have sniped at that vision, it remains a thing of glory.” 

To accept Kagan’s statement to Kyl, we would have to believe that justices were sniping about the Court being open to all parties.  I don’t recall any justice sniping about parties claiming injury getting their day in court.  But some justices did recoil from Marshall’s activist policies, such as those embodied by his infamous quote that “[y]ou do what you think is right and let the law catch up.” 

It is Marshall’s quote that raises the real question for Kagan—does she embrace a view of empathy, or solicitude for the despised and disadvantaged, or what have you that says that your policy preferences are more important than the law.