Published on Friday, May 14, 2010 by CommonDreams.org
Kagan's Troubling Record
by Marjorie CohnAfter 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