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Elena Kagan |
On May 10, President Barack
Obama nominated Elena Kagan, the current U.S. solicitor general, to fill a
vacancy on the Supreme Court created by the retirement of Justice John Paul
Stevens. Senate confirmation hearings on Kagan’s nomination started June 28.
Although Kagan has never been a
judge and has no track record of legal decisions, her career speaks for itself.
Kagan, like Sotomayor, is further to the right than the judge she stands to
replace.
Who is Elena Kagan?
Kagan grew up in New York City,
the daughter of a public school teacher and an attorney. She attended Princeton
as an undergraduate, earned a Masters degree in philosophy at Oxford and
graduated from Harvard Law School. She served as law clerk
for Judge Abner Mikva of the U.S. Court of
Appeals for the District of Columbia Circuit in 1987 and for U.S.
Justice Thurgood Marshall in 1988.
One anecdote from her clerkship for Marshall illustrates her pragmatic,
conservative approach to civil liberties. In a tribute to Marshall, Kagan wrote
that the one case he “cared about most” during the term she clerked for him was
Kadrmas v. Dickinson Public Schools.
In that case, the issue was whether a North Dakota school district violated the
Constitution’s equal-protection guarantee by refusing to waive the bus fee for
a child from an indigent family who lived 16 miles from school.
Kagan told Marshall that the court was unlikely to rule for the family.
“After all,” said Kagan, “indigency was not a suspect class; education was not
a fundamental right.” She argued that the policy was just, because the district
had a rational basis for charging all the students the same fee. In response,
Marshall called her a “knucklehead.”
“To Justice Marshall, the notion that government would act to deprive poor
children of an education—of an opportunity to improve their status and better
their lives—was anathema,” Kagan wrote. In his final published dissent in Kadrmas,
Justice Marshall said the majority showed “a callous indifference to the
realities of life for the poor.”
While serving in the Clinton administration, Kagan co-wrote a 1997
memorandum to Clinton urging him to support a ban on late-term abortions. The
year before, Kagan wrote an article in the University of Chicago Law Review that made the case that the
government has the right to restrict speech when the government believes the
speech to be “harmful.”
Justice Stevens, initially against affirmative action, eventually changed
his position. In contrast, former National Lawyers’ Guild President Marjorie
Cohn points out that “when Kagan was dean of Harvard Law
School, she hired 32 tenured and tenure-track academic faculty members. Only
seven were women and only one was a minority.”
As solicitor general, Kagan supported the police in a Supreme Court case
that led to further erosion of Miranda rights. Kagan approved of the court’s
ruling, which states that an arrested person must “speak up” to invoke their
right to remain silent, or else the police can continue to harass them with
questions.
During those same hearings,
Kagan expressed her support for indefinite detention without trial for those
whom the government suspects of providing financial support for “terror[J1] .”
Outgoing Justice Stevens played a critical role in three important cases that
put the brakes on Bush’s attempts to undermine due process under the pretext of
“fighting terror.”
On the other hand, Cohn writes,
“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.”
What is the Supreme Court?
The Supreme Court is part of
the apparatus of the capitalist state. By this definition, it exists to protect
the interests of the capitalist ruling class. Over the years, the court has
issued numerous rulings that reflect those interests.
At times however, the court has
issued rulings that had a progressive character. Such was the case with Brown v. Board of Education, which
overturned Jim Crow segregation, and Roe
v. Wade, which legalized abortion.
What are the decisive factors
that would lead the Supreme Court, an arm of the capitalist state, to issue
progressive rulings?
Many people, especially
advocates of women’s rights, have emphasized the court’s composition. They urge
support for the Democratic Party out of fear that Republican-appointed Supreme
Court justices will overturn progressive decisions such as Roe v. Wade.
The liberal strategy quells
left-wing opposition to the Democrats for fear that Republicans might score
electoral victories, even as the right wing becomes more and more vocal. The
Democratic administration, under such conditions, has continuously shifted to
the right. Despite having a majority in the House and the Senate, Obama has chosen to nominate not one but two
Supreme Court justices who are to the right of those they are replacing.
In reality, the decisive factor
in the progressive rulings lay outside the courtroom itself. Progressive
measures were determined by mass civil rights and women’s rights struggles of
those times. The historic Roe v. Wade
victory for women’s rights came under a Supreme Court whose majority was
appointed by Republican presidents—but during a high point for the women’s
rights movement.
Pressure from below led the
justices “in their wisdom” to recognize that social change was coming
regardless of the court’s disposition. By realizing reform through legal,
constitutional means, the court ultimately protected the very system it was
designed to uphold.
The same applies to the most
progressive legislation passed by Congress and signed into law by the White
House. Such legislation was not an expression of the government’s progressive
character, but rather an expression of the government’s inability to contain
the progressive social movements whose force had become irresistible.
