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.