Editor’s Note: A key concern about President Barack Obama’s nomination of Elena Kagan to the U.S. Supreme Court is her studied avoidance of the most controversial issues confronting constitutional scholars in recent years, particularly George W. Bush’s claims of unlimited presidential power to fight terrorism.

Though some of her circumspection may have related to her future ambitions (knowing that strong statements on behalf of human rights could have killed her confirmation prospects), there is also a suspicion that Kagan may simply share many right-wing views, as Marjorie Cohn notes in this guest essay:

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 five-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. 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 Founders.

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 the immediate past president of the National Lawyers Guild. She is the author of Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, and her anthology, The United States and Torture: Interrogation, Incarceration and Abuse, will be published this winter by NYU Press. See www.marjoriecohn.com; also WarIsACrime.org. 

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