Elena Kagan is No Thurgood Marshall

By Dom Apollon

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.”