Despite all the hubbub Solicitor General Elena Kagan’s Supreme Court nomination will generate, the truth of the matter is Kagan won’t make much difference to a judicial balance of power that leans rightward. She’ll maintain the status quo: four reliably liberal justices, four reliably conservative justices and one center-right swing voter in Justice Anthony Kennedy. Importantly, that means she will also do little to alter the court’s rightward trajectory on racial justice.
Both Kagan and the White House have made much of her time as a clerk for her self-described mentor, Thurgood Marshall. The hapless Republican National Committee has responded with a bizarre effort to tar her association with one of history’s most celebrated justices. But both sides overstate the connection. Kagan hasn’t exactly spent her career as a champion of the racial justice principles Marshall articulated. We need to be asking why that’s the case.
As a Democratic president’s nominee, to be confirmed by a Democratic Senate, we can expect a would-be Justice Kagan to align herself consistently with the liberal voting bloc. After all, today’s Supreme Court appointments rarely let down the presidents who nominate them. Sure, David Souter—whom a wise Latina replaced last summer—was the bane of George H.W. Bush’s existence because of his pro-choice opinions. And retiring Justice John Paul Stevens certainly grew, during his three and a half decades on the court, to become a disappointment for President Gerald Ford’s legacy. I just don’t see that happening to our current constitutional-law-professor president.
Still, don’t expect much from Kagan. Her thin record may be hard to parse, but that fact alone suggests she’s unlikely to be a leader on racial justice issues on the court—which is precisely what’s needed, given the rush to declare ours a post-racial society.
A few short years after Kagan clerked for Marshall—the former lead counsel of the landmark Brown v. Board of Education case—the justice wrote his last impassioned dissent, in a capital punishment case called Payne v. Tennessee. He criticized the naked hypocrisy of the conservative majority’s judicial activism as it broke from the court’s general practice of upholding recent precedents. “Power, not reason is the new currency of this Court’s decision making,” Marshall famously wrote. It was his bitter, parting shot as he watched the civil rights and civil liberties gains of his four-decade career erode.
In the 22 years since Kagan left Marshall’s chambers, she hasn’t developed much of a record to suggest she’ll reverse the slide that so embittered her mentor, beyond some indication she’ll be friendly to free speech rights. Given how little she has written, we practically have to go back to her 1986 application to clerk for Marshall to get an assessment of her ideas on race discrimination cases. (For what it’s worth, Professor Randall Kennedy gave her an A+ in his race and constitutional law class at Harvard, according to materials the Legal Times found in Marshall’s papers.) But a look at the cases Marshall weighed during the term Kagan clerked could be instructive.
Probably the most-often taught civil liberties case from that term is Frisby v. Schultz—which interestingly tested the limits of free speech. Marshall voted against the majority, which upheld a ban on residential sidewalk protesting of abortion foes. But the real jewels may be found in Kagan’s memos to Justice Marshall for his powerful dissent in Kadrmas v. Dickinson Public School (North Dakota).
In Kadrmas, Marshall concluded that a North Dakota statute discriminated on the basis of economic status, but he could only garner three other votes. His dissent blasted the court for “continu[ing] the retreat from the promise of equal educational opportunity by holding that a school district’s refusal to allow an indigent child who lives 16 miles from the nearest school to use a school bus service without paying a fee does not violate the Fourteenth Amendment’s Equal Protection Clause.”
What was Kagan’s involvement in writing this dissent? And why hasn’t she chosen to more forcefully pursue the principles Marshall espoused in the years since? Somebody on Capitol Hill needs to trek over to the Library of Congress and find out what Kagan’s memos had to say on this and other cases from the 1987-1988 term.
Kagan’s loudest critics thus far have been from the left, and they’ve raised questions about racial justice. As has been well documented, her record on hiring nonwhites while serving as Harvard Law School’s dean is, shall we say, wanting.
Then there’s Kagan’s permissive stance on presidential power, which Salon’s Glenn Greenwald has loudly criticized. Her deference to executive power should stand out for those concerned with racial profiling of terrorism suspects, particularly in light of Attorney General Eric Holder’s recent statements suggesting his willingness to carve out exceptions to Miranda rights. If the ACLU has anything to do with it, a case challenging these exact assertions of executive power are likely to come before a Justice Kagan in the years to come. How will she stand?
Ultimately, Kagan’s major qualification appears to be her ability to bring a measure of peace between two sides of scholarly egos, as evidenced by her tenure as Harvard Law’s dean, where she significantly increased the number of conservative scholars on the faculty. While this was no small feat, it’s a questionable basis for Supreme Court qualification—unless, of course, you are a president still concerned more with “changing the tone” in the nation’s capital than with finding the remedies for our nation’s vast race and class disparities.
Of course, it’s possible Kagan will turn out to be a brilliantly articulate and influential voice for racial, gender, and economic justice on the court. But President Obama has nonetheless passed up the opportunity to demonstrate the court’s need for a principled protector and explicit champion of the poor and under-represented.
Which is, ironically, why the nomination may be more vulnerable on the left than the right. If Kagan’s nomination falters, it’s likely to be because the left mobilized to force Obama’s hand in the same way those on the right forced George W. Bush’s hand on Harriet Miers—whose failed nomination led to the seating of established conservative hero Samuel Alito.
If Kagan performs as poorly in her Capitol Hill tour as Miers did—and the Congressional Black Caucus has already said it has questions for her—the left should be equally adamant that Obama replace Kagan with our own Alito-equivalent. After all, Bush appointed two true believers in Roberts and “Scalito”, so why shouldn’t Obama follow suit with Sotomayor and another true believer with a record?
Kagan, who’s a young 50, is bound to take part in hundreds of cases—including many involving executive power, the death penalty, police searches and immigrant rights (read: Arizona’s SB 1070). Progressives would do well to thoroughly scrub the cases from Kagan’s 1987-88 clerking term—particularly those decided in May or June, because justices are like most of us, they leave the most difficult work/cases for the end. We need our Senators to probe for detailed answers to her views on those cases and other related precedents.