Thursday night’s CBS News featured a piece by Jan Crawford highlighting memos Elena Kagan wrote for Justice Thurgood Marshall that will provide ammunition to the Right in her confirmation hearings. Some of the points she brings up have been aired already, but many are new needles popping up in the haystack of Kagan documents that may give insight into her studiously guarded record.
1. Abortion and prisoners’ rights. In this case, inmates sued because the state refused to allow or pay for abortions that were not deemed “medically necessary.” Kagan agreed that the court of appeals had gone too far in calling this a violation of the Eighth Amendment proscription of cruel and unusual punishment, and felt it was incorrect to suggest the state should pay for inmates’ abortions if the general public didn’t have the same right. Nonetheless, she recommended against taking the case because “this case is likely to become the vehicle that this court uses to create some very bad law on abortion and/or prisoners’ rights.”
Her response tells us two things. First, she was political in her recommendations to her boss — even if she thought a case below was wrong, she was more concerned about the direction in which the law would be shifted than about doing justice in an individual case or taking on a case that might go the wrong way. Fair enough — that approach is probably not limited to liberal judges, and likely reflected Justice Marshall’s own views on granting cert. But second, we can see from her statements that she viewed a court backing away from abortion rights or prisoner rights as a step in the wrong direction. It is often said that hard cases make bad law, and she worried that deciding these cases against the women inmates might go farther than she or her justice would have gone in limiting these rights. For those who weren’t already confident in her pro–Roe v. Wade position, this should be a clear signal.
2. Desegregation. A school district, seeing changes in patterns of where whites and Hispanics lived that were starting to affect the racial balance of its two high schools, instituted a rezoning plan that “explicitly took race and ethnicity into account.” Kagan called the plan “amazingly sensible” and illustrating “good sense and fair-mindedness” despite the general rule against rezoning where there has been no prior history of discrimination. The Court recently struck down a plan that is nearly identical, warning against programs that assigned schools based on race absent prior discrimination (or, in Justice Kennedy’s concurrence, some other undefined showing of “necessity”). This memo suggests Kagan might have voted the other way.
3. Marriage and states’ rights. In New York, prisoners serving a life sentence were considered civilly “dead,” so that any previous marriage was ended and they couldn’t contract a new marriage. Nonetheless, a New York inmate married in Kansas by proxy and petitioned for inclusion in a family visitation program. He argued that New York was required to recognize his marriage under the “full faith and credit” clause of the Constitution despite the fact that it was illegal in New York. Kagan deemed his position “at least arguably correct,” and recommended that the Court ask the state for a response to pursue granting cert.
The Full Faith and Credit Clause is coming into prominence lately in the marriage context, because it is a vehicle for individuals married in states that allow same-sex marriage to force their home states to recognize the union. This is what the Defense of Marriage Act was designed to prevent. President Obama made repeal of DOMA a plank in his platform, and appointing a justice who would read Full Faith and Credit to cover novel forms of marriage and civil unions that the Founders could never have dreamed of would be a step toward that goal.
4. Gun rights. This memo has been discussed before. In response to an argument that the District of Columbia’s strict gun laws violate the Second Amendment, Kagan declared: “I am not sympathetic.” This argument won the day in the recent Heller case.
5. Ineffective assistance of counsel. Kagan criticized Strickland v. Washington, a case that established the guidelines for determining when an attorney’s mistakes rise to the level of denying a defendant his Sixth Amendment right to counsel. Justice Marshall dissented from that decision. Kagan wrote: “I’d like to reverse Strickland too, but something tells me this court won’t buy the idea.” Here if Kagan is merely channeling Marshall, then she has no scruples about claiming she agrees with him for rhetorical effect. Alternately, we have her on record to the left of Justice Stevens, who signed on to the seven-member majority in Strickland.
We can expect that Kagan will argue, as she did during her solicitor-general confirmation hearings, that she was channeling Justice Marshall in much of her advice. But Kagan herself conceded, “I don’t want to say there is nothing of me in these memos,” and throughout her memos to Marshall she uses phrases like “I think” and “I believe,” taking ownership of the positions she describes. Hopefully the senators on the Judiciary Committee will press her to explain where Marshall leaves off and she begins.