Nonprofit, nonpartisan journalism. Supported by readers.

Community Voices features opinion pieces from a wide variety of authors and perspectives. (Submission Guidelines)

Liberal Justice Kagan?

In his commentary “Should Justices Ginsberg and Breyer retire now,” Eric Black describes Supreme Court Justice Elena Kagan as a “new, young, member of the liberal bloc” on the Court. Since Justice Kagan has yet to write a majority opinion for the court, it is not clear upon what information this conclusion is based. We would greatly welcome Elena Kagan as a liberal voice to replace the retired Justice Stevens.

But if Justice Kagan’s record as Solicitor General of the United States is any guide to her judicial philosophy, we believe that there is reason to pause before concluding that she has joined the court’s liberal wing.

We were dismayed to discover that in her term as Solicitor General, Justice Kagan consistently advanced positions in Supreme Court cases that were contrary to those being advocated by members of the public interest bar in those cases, and that went against views deeply held by members of the public interest law community.

These include advocacy supporting immunity from civil liability to prosecutors alleged to have fabricated evidence resulting in the wrongful conviction and incarceration for 25 years of two black teenagers (Pottawattamie County, Iowa v. McGhee), and to school officials who strip-searched a 13 year old girl based on a wrongful accusation that she possessed over the counter prescription drugs while in school (Safford Unified School District #1 v. Redding).

She also advocated against a constitutional damage remedy for a detained immigrant who died in custody after being denied a laboratory test for penile cancer (Hui v. Castaneda), and argued for the deportation of an immigrant Vietnam War veteran who entered a guilty plea to a drug offense based on the incompetent advice of a lawyer who failed to tell the deportee of the deleterious immigration consequences of entering the plea (Padilla v. Kentucky). In that particular case, Justice Stevens, who authored the majority Supreme Court opinion rejecting Kagan’s argument, described Solicitor General Kagan’s position as “absurd.”

In three additional cases testing the validity of the required police interrogation warnings under Miranda v. Arizona, Solicitor General Kagan, on each occasion, argued for reversal of state and federal appellate courts that had issued Miranda affirming rulings (Berghuis v. Thompkins, Florida v. Powell, Maryland v. Shatzer).

Had Solicitor General Kagan been representing the United States as a party of record in these cases, we would understand her articulated positions as consistent with her ethical obligations. However, in each one of the mentioned cases Solicitor General Kagan was appearing on behalf of the United States as a voluntary friend of the court (amicus) with no legal obligation to represent any of the parties; the solicitor general’s arguments were purely gratuitous.

Elena Kagan may well prove to be the next great liberal justice that we would like her to be. But based on her record as solicitor general, we suggest that it is still too early to tell.

Frank Deale is professor of law at CUNY Law School and Rita Cant is a journalist. They are authors of a forthcoming article “Barack Obama and the Public Interest Law Movement: A Preliminary Assessment” that will appear in the next issue of the Connecticut Public Interest Law Journal.

Comments (2)

  1. Submitted by myles spicer on 05/02/2011 - 09:10 am.

    As the authors admit, it is premature to determine the course Kagan will ultimately play on the court — but my bet still is that she will add immeasurably to the liberal wing. Further she will do so as a thoughtful and articulate member. I think she was an excellent choice.

    Parsing her work as Solicitor General is interesting and useful, but not definative, as noted. Addtionally, as Justices mature, so (sometimes) do their points of view — William Douglas being the prime example.

    Now, if only that were true of Thomas and Scalia…

  2. Submitted by Greg Kapphahn on 05/02/2011 - 04:36 pm.

    Regarding the ability to “mature”: in order to grow into broader, deeper understanding (for both liberal and conservative justices), one must have enough of one’s original personality intact to be able to listen to, comprehend, and consider the perspectives of people who may have VERY DIFFERENT upbringings and life experiences than you, yourself, have had.

    Lacking that, we tend to regard our own life experiences as not only normal, but definitive and proper and regard all those with other experiences as defective or lacking.

    Those of us who have been raised by overly-rigid, dysfunctional families, communites and faith communities tend to lose pieces of our own personalities.

    Extreme conservatives have most often lost empathy and compassion, leading them to the unchanging position that those who are in even the most legitimate need of help never deserve it and often encouraging them to see the world through “money goggles” whose limited perspective causes them to believe that money is and people who appear to be in possession of money are the only reliable sources of personal fulfillment and solace.

    Extreme liberals have most often lost the discernment necessary to draw appropriate boundaries and take notice when people are willfully responsible for their own troubles leading them to the unchanging position that those who are in pain and need always deserve help no matter how stubbornly, willfully and even criminally they have created their own problems.

    I fear Thomas and Scalia are among the former and, their perspectives being based on the ideology their dysfunctions require them to wrap around themselves in order feel comfortable living in the world, are unlikely EVER to shift their positions, no matter how long they serve on the court.

Leave a Reply